Telangana High Court
Mansoor Shah Khan vs The Superintendent Of Police on 28 February, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION (TR) No.5536 of 2017
ORDER:
This writ petition has been filed by the petitioner seeking the following relief:
"... to declare the action of the 1st respondent in issuing the impugned Memo No.52/A5/PR/ OE(A11)/2012-16 dated 18.01.2016 appointing the Enquiry Officer to conduct oral enquiry against the applicant in pursuance of Memorandum of Charge issued by the 1st respondent vide C.No.52/A5/PR/ OE(A11)/2012 dated 05.12.2012 and proceeding with the oral enquiry pending criminal trial before the Hon'ble PCR Court, Karimnagar in C.C.No.8/2015 even though the charges in the criminal case as well as in departmental proceedings are one and the same is as illegal, arbitrary, unjust and violative of principles of natural justice equity and fair play besides being contrary to the law on the subject and consequently direct the respondents not to proceed with the oral enquiry against the applicant for the charges leveled against him pending the criminal trial before the Honble PCR Court at Karimnagar in C.C.No.8/2015 and pass such other order or orders...."
2. The brief facts leading to filing of the present petition are as under:
(i) The petitioner is now working as Senior Assistant in District Police Office, Karimnagar and while working as such, a crime was registered against him vide FIR No.59/2013 on LNA,J WP (TR) No.5536 of 2017 2 07.09.2012 by the Police, Karimnagar Rural Police Station basing on the false complaint given by one Danaveni Srilatha for the offence under Sections 448, 427 r/w. 34 of IPC. After investigation the Police filed the charge sheet and the same is numbered as CC.No.8/2015 and is pending for trial before the Hon'ble PCR Court at Karimnagar.
(ii) that basing on the registration of criminal case against him, the 1st respondent called for a preliminary enquiry report from the Circle Inspector of Police, Karimnagar (Rural) P.S. vide Memo C.No.52/PR/OE(A11)/2012, dated 10.10.2012. As per the Instructions of the 1st respondent the CI of Police, Karimnagar (Rural) has conducted preliminary enquiry against the petitioner and submitted report to the 1st respondent in C.No.286/C1-KNRⓇ/2012, dated 10.11.2012. Based on the above preliminary enquiry report, the 1st respondent had issued the Charge Memo dated 05.12.2012. The charges framed against the petitioner are that he has exhibited grave misconduct by indulging in criminal acts by provocating his partners to trespass into the house constructed under Indiramma Housing Scheme at Plot Nos. 6, 7 and 18 at Rekurthy (v) of Karimnagar (M) on 06.09.2012 LNA,J WP (TR) No.5536 of 2017 3 and got dismantled them with JCB, which was engaged by the petitioner with a mala fide intention and thereby violated Rule 3 of APCS (Conduct) Rules, 1964. The accusation made in the criminal case and the departmental proceedings are one and the same.
iii) As per the directions of the 1st respondent the petitioner submitted his explanation to the Memorandum of Charge stating that he is nothing to do with the alleged offences and only to defame him, he was implicated in the false case. But, the 1st respondent without considering the explanation, had appointed the 2nd respondent as enquiry officer by Memo dated 18.01.2016 to conduct oral enquiry against the petitioner.
iv) that according to Section 179 (2) of the A.P. Police Manual, when a criminal case is pending in a Court, departmental proceedings should be suspended, in such cases it must be decided whether the departmental proceedings should be taken in the first instance before filing a charge sheet. However, departmental enquiry can take place simultaneously with police Investigation. In the present LNA,J WP (TR) No.5536 of 2017 4 case, the respondents have already filed Charge sheet before the competent criminal court and the same is pending and therefore, the respondents 1 and 2 have no authority to conduct departmental proceedings at this distance of time and any such action is totally in contravention of Section179 (2) of A.P. Police Manual apart from contrary to the dictum of law.
v) that it is now well settled principle of law that when the allegations in the criminal case and the charges In the departmental enquiry are one and the same, the disciplinary proceedings ought not to have been proceeded till the conclusion of the criminal case. The Hon'ble High Court and the Hon'ble Apex has held in various cases including M.Koteswara Rao v. Sr.Commandant, CISF Unit, Sriharikota and others 1 that the departmental proceedings and criminal proceedings are one and the same, the departmental proceedings can be postponed till the disposal of the criminal case. It is averred that seeking to conduct departmental proceedings even though there is no authority on the respondents to do so which is highly illegal and 1 2011 (5) ALT 777 (SB) LNA,J WP (TR) No.5536 of 2017 5 contrary to the settled law by the Hon'ble Court in G.M.Tank's Case reported in 2006 (4) SCJ 1.
vi) that the case of the petitioner is similar and seeking similar directions. As aforesaid if the departmental proceedings have been concluded, it would reflect on the criminal proceedings since the witnesses both in criminal case and the departmental proceedings are one and the same. Therefore, viewed from any angle, the impugned action of the respondents in seeking to conduct enquiry while the criminal case on the same set of facts was pending is arbitrary and contrary to the law on the subject. Hence, the petitioner filed the O.A. before the A.P.Administrative Tribunal (APAT).
3. The APAT, on 12.02.2016, while admitting the O.A., granted interim order that pending disposal of the O.A., further proceedings in Memorandum of charge dated 05.12.2012 of the District Police Office, Karimnagar, are stayed.
4. The respondents no.1 filed vacate petition vide V.M.A.No.231 of 2016 in O.A.No.373 of 2016, denying the LNA,J WP (TR) No.5536 of 2017 6 averments of the petitioner in the application and contended that 1st respondent had issued memorandum of charge vide C.No.52/A5/PR/OE/A11/2012, dated 05.12.2012 and issued proceedings in C.No.52/A5/PR/OE/A11/2012, dated 01.07.2013 appointing OSD, Karimnagar as enquiry officer to conduct enquiry against the petitioner. The proceedings dated 18.01.2016 are issued only to change of the enquiry officer i.e., OSD, Karimnagar to DSP, DSB, Karimnagar. Therefore, the said O.A. is not filed within the time prescribed under Section 21 of the Administrative Tribunal Act, 1985. But only to cover up delay in filing the O.A., the petitioner quoted the proceedings dated 18.01.2016.
5. It is contended that petitioner has failed to submit any explanation in reply to the charge memo even after reminders issued and in the absence any explanation, the 1st respondent ordered for an ex parte oral enquiry appointing OSD vide proceedings dated 01.07.2013 and later 2nd respondent was appointed as enquiry officer on administrative reasons. It is further contended that petitioner is a member of ministerial staff, but not executive staff, that the ministerial staff working in police department are LNA,J WP (TR) No.5536 of 2017 7 governed by AP Ministerial service and the AP Police manual orders are related to the executive staff of police department. Therefore, the order no.179 (2) of AP Police manual is not applicable to the present case.
6. It is further contended that departmental enquiry against the petitioner has been initiated for violation of Rule 3 of APCS (Conduct) Rules, 1964, but not for involvement of criminal case and finally prayed to vacate the interim order dated 12.02.2016 and dismiss the O.A.
7. Consequent to abolition of APAT, the said OA was transferred to this Court and the same is renumbered as W.P.(TR).No.5536 of 2017.
8. Heard Sri D.Bala Kishan Rao, the learned counsel for the petitioner and the learned Government Pleader appearing for the respondents.
9. Learned counsel for the petitioner submitted that petitioner was acquitted in criminal case by the Judicial Magistrate of First Class (Special Mobile), Karimnagar on 22.11.2016 and therefore, the disciplinary proceedings initiated against the petitioner can be dropped as the LNA,J WP (TR) No.5536 of 2017 8 witnesses in both the criminal case and the disciplinary proceedings are one and the same. He further submitted that impugned action of the respondents in continuing the disciplinary proceedings even after acquittal in criminal case is contrary to law and therefore, prayed to allow the writ petition. In support of his contention, he relied upon the decision of the Hon'ble Apex Court in G.M.Tank vs. State of Gujarat and another [Appeal (Civil) No.2582 of 2006 dated 10.04.2006].
10. Per contra, the learned Government Pleader for respondents, while reiterating the averments made in the counter-affidavit, contended that the proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Though the petitioner was acquitted in criminal case, he cannot escape from the departmental proceedings, where a charge relating to misconduct is being investigated, the factors in disciplinary proceedings are many, as such, an enforcement of discipline or to investigate the level of integrity of the delinquent, the standard of proof required in those proceedings is also different than that required in a criminal LNA,J WP (TR) No.5536 of 2017 9 case; that while in the departmental proceedings, the standard of proof is one of preponderance of probabilities, in a criminal case, the charge has to be proved beyond reasonable doubt. He therefore, prayed to dismiss the writ petition.
Consideration:
11. A perusal of the record discloses that petitioner was working as Senior Assistant in Police Department and while working as such, he was involved in criminal case vide C.C.No.8 of 2015 and the competent authority also initiated departmental proceedings against him. The APAT by order dated 12.02.2016 granted interim relief staying the Memorandum of charge dated 05.12.2012 issued by the 1st respondent.
12. Further, the criminal case filed against the petitioner had ended in acquittal vide judgment dated 22.11.2016 by the Judicial Magistrate of First Class (Special Mobile), Karimnagar. It is contended by the learned counsel for petitioner that the facts, evidence and charges are same in criminal case as well as the departmental proceedings and LNA,J WP (TR) No.5536 of 2017 10 therefore, respondents cannot proceed further with the departmental proceedings against the petitioner.
13. In Union of India and others vs. Sitaram Mishra and another 2, the Hon'ble Apex Court held as under:
"14. The fact that the first respondent was acquitted in the course of the criminal trial cannot operate ipso facto as a ground for vitiating the finding of misconduct which has been arrived at during the course of the disciplinary proceedings. The High Court, in our view, has drawn an erroneous inference from the decision of this Court in M. Paul Anthony v. Bharat Gold Mines Ltd. [M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679 : 1999 SCC (L&S) 810] . The High Court adverted to the following principle of law laid down in the above judgment : (SCC p. 687, para 13) "13. ... While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance."
14. In State of Karnataka and another vs. Umesh 3, the Hon'ble Apex Court held as under:
"16. The principles which govern a disciplinary enquiry are distinct from those which apply to a criminal trial. In a prosecution for an offence punishable under the criminal law, 2 (2019) 20 SCC 588 3 (2022) 6 SCC 563 LNA,J WP (TR) No.5536 of 2017 11 the burden lies on the prosecution to establish the ingredients of the offence beyond reasonable doubt. The accused is entitled to a presumption of innocence. The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment. Unlike a criminal prosecution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, a charge of misconduct has to be established on a preponderance of probabilities. The rules of evidence which apply to a criminal trial are distinct from those which govern a disciplinary enquiry. The acquittal of the accused in a criminal case does not debar the employer from proceeding in the exercise of disciplinary jurisdiction."
15. In Ram Lal v. State of Rajasthan and others 4 , the Hon'ble Apex Court held as under:
"12. .. if the charges in the departmental enquiry and the criminal court are identical or similar, and if the evidence, witnesses and circumstances are one and the same, then the matter acquires a different dimension. If the Court in judicial review concludes that the acquittal in the criminal proceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge, the Court in judicial review can grant redress in certain circumstances. The Court will be entitled to exercise its discretion and grant relief, if it concludes that allowing the findings in the disciplinary proceedings to stand will be unjust, unfair and oppressive. Each case will turn on its own facts."4
(2024) 1 SCC 175 LNA,J WP (TR) No.5536 of 2017 12
16. From the above decisions of the Hon'ble Apex Court, it is clear that the acquittal in criminal case cannot ipso facto operate as a ground for vitiating the finding of misconduct in the departmental proceedings. However, only exception is where the departmental proceedings and the criminal case are based on the same set of facts, evidence, witnesses and circumstances without there being any variance, in which case, the Court is entitled to exercise its discretion and grant relief, if it concludes that allowing the findings in the disciplinary proceedings to stand will be unjust, unfair and oppressive. However, the same shall depend on facts, circumstances of each case.
17. In the present case, the competent authority had also initiated departmental proceedings against the petitioner, however, in view of the interim order dated 12.02.2016 granted by the Tribunal, the respondents could not proceed further with the departmental enquiry. Since, the departmental proceedings have not been concluded, this Court is not inclined to entertain the writ petition at this stage.
18. Except the charges framed by the Department against the employee, no particulars have been placed before this Court with LNA,J WP (TR) No.5536 of 2017 13 regard to the material being relied upon by the Department and the witnesses to be examined in the enquiry.
19. In the light of the above facts, circumstances and discussion, the interim order dated 12.02.2016 granted by the APAT is vacated and the Writ Petition is disposed of, leaving it open to the respondent-authorities to take appropriate decision with regard to the departmental enquiry against the petitioner. There shall be no order as to costs.
Pending Miscellaneous Applications, if any, shall stand closed.
__________________________________ LAXMI NARAYANA ALISHETTY,J Date: 28.02.2024 Kkm