Telangana High Court
D Bhagya Raj vs The Commissioner Of Police on 6 June, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
WRIT PETITION (TR) NO.6129 OF 2017
ORDER:
In this Writ Petition, the petitioner is challenging the Proceedings D.O.No.2999, No.L&O/B2/546/2010, dated 30.05.2014, issued by the respondent No.1 and the appellate orders dated 27.09.2014 and the revision orders dated 10.03.2016 and to declare them as illegal, arbitrary and unconstitutional and consequently to set aside the same and hold that the petitioner is entitled for reinstatement into duty with all consequential benefits 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 working as a Police Constable in P.S.Jubilee Hills after being appointed on 19.01.2008. It is submitted that on 17.03.2010, a charge memo was issued to the petitioner for unauthorizedly being absent to duty from 20.09.2010 and later it had come to be known that he was arrested by the Prohibition and Excise Officials of Enforcement on 20.09.2010 at about 17.45 2 TMD,J W.P(Tr).No.6129 of 2017 hours for his involvement in drug racket case vide Crime No.119/2010, under Section 8(c) of NDPS Act of Kachiguda Excise Circle and subsequently, he was remanded to judicial custody on 21.09.2010. Therefore, the petitioner was required to submit his statement of defence and the petitioner submitted his statement of defence and thereafter an Enquiry Officer was appointed to enquire into the charges framed against the petitioner. The Enquiry Officer, after recording the evidence, come to the conclusion that the charges against the petitioner are proved. The disciplinary authority had passed the punishment order of dismissal from service and treated the suspension period as 'not on duty'. In the meantime, the petitioner was acquitted from the criminal case honourably and thereafter, the petitioner filed an appeal before the appellate authority, but the same was dismissed and the revision authority also has dismissed the revision petition filed by the petitioner. Challenging the same, the present writ petition has been filed.
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TMD,J W.P(Tr).No.6129 of 2017
3. Learned counsel for the petitioner submitted that the petitioner was not wilfully absent from duties, but was prevented by reasonable cause, i.e., he was apprehended by the police and was in judicial custody and therefore, the basis of Charge No.1 is unsustainable. As regards the charge of possessing Narcotic Drugs, the learned counsel for the petitioner submitted that the Criminal Court has acquitted the petitioner from the charges and therefore, the same should have been considered for dropping the charges against the petitioner.
4. Learned counsel for the petitioner placed reliance upon the following decisions in support of his contentions:
(1) Copy of the Judgment in Session Case No.343/2011, dated 08.02.2013;
(2) G.M.Tank Vs. State of Gujarat and Another 1.
5. Learned Government Pleader for Home, on the other hand, submitted that the petitioner was found to be 1 2006 (4) SCJ 1 4 TMD,J W.P(Tr).No.6129 of 2017 in possession of Narcotic Drugs and was also absent to duty during the relevant hours and therefore, the charges have been held to be proved by the Enquiry Officer and the Disciplinary Authority has thought it fit to impose the punishment of dismissal from service. It is submitted that this Court may not interfere with the quantum of punishment. It is submitted that the petitioner has not challenged the procedure of conducting enquiry and therefore, he cannot now challenge the quantum of punishment imposed by the authorities. He has also placed reliance upon the following judgments:
(1) Deputy Inspector General of Police and Another Vs. S.Samuthiram 2;
(2) State of Rajasthan and Others Vs. Heem Singh 3.
6. Having regard to the rival contentions and the material on record, this Court finds that the issue of unauthorized absence is not maintainable because the 2 (2013) 1 SCC 598 3 (2021) 12 SCC 569 5 TMD,J W.P(Tr).No.6129 of 2017 petitioner was arrested on the very same day and in view of the said incident, he could not appear before the authorities for duty. With regard to the second charge, this Court finds that it is for the Criminal Court to decide as to whether any offence has been committed by the petitioner. It is not the case where during the course of discharge of official duty, the petitioner had committed a criminal case. Therefore, the decision of the Criminal Court assumes importance. This Court in W.P.No.12953 of 2021, dated 29.04.2024 has also held as under:
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 6 TMD,J W.P(Tr).No.6129 of 2017 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 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.
7. Respectively following the same, this Court is of the opinion that the respondents ought to have considered the judgment in the Criminal Case in acquitting the petitioner from criminal charges for concluding the disciplinary proceedings. The punishment order dated 30.05.2014 and the appellate order dated 27.09.2014 and 7 TMD,J W.P(Tr).No.6129 of 2017 the revision orders dated 10.03.2016 are accordingly set aside. The respondents are directed to reinstate the petitioner into service but without back wages and he shall be eligible for all consequential benefits only from the date of acquittal from the criminal case.
8. Accordingly, this writ petition is allowed. There shall be no order as to costs.
9. Miscellaneous petitions, if any, pending in this Writ Petition, shall stand closed.
____________________________ JUSTICE T.MADHAVI DEVI Dated: 06.06.2024 bak