Telangana High Court
B. Venkatesam vs The Government Of A.P. on 22 January, 2024
HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION (TR) No.1741 of 2017
ORDER:
This writ petition has been filed by the petitioner seeking the following relief:
"... to declare the action of the respondents in conducting enquiry in departmental proceedings pending against the applicant vide Proceedings PR.No.82/2012 (No.L&O/B7/180/2012 dated
02.06.2012 though the criminal case is pending in Crime No.2/2012 filed under Section 420 r/w 511 IPC on the file of the Court of X Addl. Chief Metropolitan Magistrate, Secunderabad, as illegal, arbitrary and also contrary to the Orders in O.A.No.924/2014, dated 21.02.2014 and W.P.No.15173/2013 dated 04.06.2013 and consequently, direct the respondents not to proceed with the departmental enquiry wherein issued vide Proceedings PR No.82/2012 (No. L&O/B7/180/2012, dated 02.06.2012 issued by the 2nd respondent...."
2. The brief facts leading to filing of the present petition are that the petitioner viz., B.Venkatesam, was appointed as a Police Constable on 12.03.1982 and subsequently, promoted as Head Constable in the year 2008. While so, on 22.01.2012, the Police, Market P.S., Hyderabad registered a case in Crime No.2/2022 under Section 420 r/w 511 of IPC LNA,J WP (TR) No.1741 of 2017 2 against the petitioner, investigated into the same and a charge sheet was filed.
2.1. It is contended that in view of involvement in the said criminal case, the Commissioner of Police (2nd respondent), placed the petitioner under suspension vide D.O.No.631, dated 30.01.2012 from the date of his arrest i.e., 23.01.2012 and subsequently, petitioner was reinstated into service and he was discharging his duties. While matter stood thus, the 2nd respondent issued impugned memorandum dated 02.06.2012 by framing charge against the petitioner for conducting departmental enquiry.
2.2. The petitioner submitted statement of defense on 24.12.2012 denying the charges and contended that police falsely implicated him in criminal case and the same is pending adjudication before the criminal court. It is contended that while criminal proceedings are going on, the departmental enquiry should be stopped and no parallel departmental enquiry should be conducted unless the set of circumstances and witnesses are different from that of criminal case. In the present case, the set of evidence, LNA,J WP (TR) No.1741 of 2017 3 witnesses and documents to be relied on the departmental proceedings are exactly the same as in criminal case and therefore, the evidence is same to be relied in the departmental proceedings. Hence, the present writ petition. 2.3. The A.P. Administrative Tribunal passed the interim orders dated 28.02.2014 directing the respondents not to proceed with the departmental enquiry issued in proceedings dated 02.06.2012 by the 2nd respondent till further orders.
3. The respondents filed vacate petition vide V.M.A.No.475 of 2014 in O.A.No.1427 of 2014, contending that on remand of the petitioner to judicial custody, he was placed under suspension vide order dated 30.01.2012 in terms of Rule 8(2)(a) of A.P.Civil Services (Classification, Control & Appeal) Rules, 1991 (for short, 'the Rules, 1991') pending disciplinary action against him. An Article of charge was issued to the petitioner calling for his written explanation and petitioner submitted his written explanation dated 24.12.2012. An oral enquiry was ordered against the petitioner by appointing Detective Inspector, SR Nagar P.S., Hyderabad, as Inquiring LNA,J WP (TR) No.1741 of 2017 4 Authority to enquire into the lapses committed by petitioner and the same is under process.
3.1. It is contended that as per the interim orders, the inquiring authority was instructed not to proceed further with the enquiry until further orders. It is contended that the decision taken in criminal case does not have the effect of nullifying the decision taken in the departmental proceedings; that they operate in different areas of consideration and therefore, it does not amount to double jeopardy; that while in the departmental proceedings, the standard of proof is one of preponderance of the probabilities and whereas, in a criminal case, the charge has to be proved beyond reasonable doubt.
3.2. In view of the facts, it is contended that interim orders may be vacated as it is devoid of merits.
4. Heard Sri S.Ajay Kumar, the learned counsel for the petitioner and Sri M.V.Rama Rao, the learned Special Government Pleader appearing for the respondents.
5. Learned counsel for the petitioner submitted that petitioner retired from service on 31.07.2017 on attaining the LNA,J WP (TR) No.1741 of 2017 5 age of superannuation, but he was sanctioned only provisional pension in view of pendency of criminal case. He further submitted that petitioner was acquitted in criminal case by the competent criminal Court on 07.06.2022 and therefore, petitioner is entitled to receive his entire pension and all pensionary benefits including gratuity, commutation of earned leave including arrears of pension. He further submitted that after acquittal in criminal case, petitioner submitted a representation on 01.08.2023 requesting the 2nd respondent to settle the pensionary benefits by enclosing the copy of the judgment in criminal case on 07.06.2022, however, no orders have been passed by the respondents. 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].
6. On the other hand, the learned Special Standing Counsel 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 LNA,J WP (TR) No.1741 of 2017 6 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 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 vacate the interim orders and dismiss the O.A. as it is devoid of merits. Consideration:
7. A perusal of the record discloses that petitioner was appointed as Constable on 12.03.1982 and promoted as Head Constable. While working as Head Constable, he was involved in criminal case vide CC No.142 of 2017 and the competent authority also initiated departmental proceedings against him. The Commissioner of Police (2nd respondent), placed the petitioner under suspension vide D.O.No.631, dated 30.01.2012 from the date of his arrest i.e., 23.01.2012 and subsequently, petitioner was reinstated into service and he LNA,J WP (TR) No.1741 of 2017 7 was discharging his duties. The Tribunal by order dated 28.02.2014 granted interim relief directing the respondents not to proceed with the departmental enquiry issued in proceedings dated 02.06.2012 by the 2nd respondent till further orders. It appears that petitioner had retired from service on 31.07.2017 on attaining the age of superannuation, however, he was sanctioned only provisional pension in view of pendency of criminal case.
8. Further, the criminal case filed against the petitioner had ended in acquittal vide judgment dated 07.06.2022 by the XXII Addl.Chief Metropolitan Magistrate, Secunderabad. It is contended that the facts, evidence and charges are same in both criminal case as well as the departmental proceedings and therefore, respondents cannot proceed further with the departmental proceedings against the petitioner. Learned counsel for the petitioner relied upon the decision of the Hon'ble Apex Court in G.M.Tank (supra) in support of his contention.
LNA,J WP (TR) No.1741 of 2017 8
9. In Union of India and others vs. Sitaram Mishra and another 1, 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."
10. In State of Karnataka and another vs. Umesh 2, 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, 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 1 (2019) 20 SCC 588 2 (2022) 6 SCC 563 LNA,J WP (TR) No.1741 of 2017 9 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."
11. In Ram Lal v. State of Rajasthan and others 3 , 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."
12. 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 3 (2024) 1 SCC 175 LNA,J WP (TR) No.1741 of 2017 10 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.
13. In the present case, a criminal case vide CC No.142 of 2017 was registered against the petitioner and he was acquitted in the said criminal case by the XXII Addl.Chief Metropolitan Magistrate, Secunderabad, vide judgment dated 07.06.2022.
14. The competent authority had also initiated departmental proceedings against the petitioner, however, in view of the interim order dated 28.02.2014 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.
15. In the light of the above facts, circumstances, discussion and settled legal position, writ petition is disposed of directing the respondents to consider the representation of petitioner LNA,J WP (TR) No.1741 of 2017 11 dated 01.08.2023, and pass a reasoned order in accordance with law within a period of six weeks from the date of receipt of copy of this order and communicate the same to the petitioner.
16. Accordingly, the Writ Petition is disposed of with the above direction. There shall be no order as to costs.
Pending Miscellaneous Applications, if any, shall stand closed.
__________________________________ LAXMI NARAYANA ALISHETTY,J Date: 22.01.2024 Kkm