Telangana High Court
A. Rajesh vs The State Of Telangana And 3 Others on 14 June, 2024
THE HON'BLE SRI JUSTICE PULLA KARTHIK
WRIT PETITION No.20176 OF 2022
ORDER:
This Writ Petition, under Article 226 of the Constitution of India, is filed seeking the following relief:
"...to issue an appropriate writ or direction particularly one in the nature of WRIT OF CERTIORARI, quash the impugned Proc.
No.C.No.81/RI-Hgs/WGL/2022, dated 12.04.2022 as illegal, unjust and in violation of Art.14, 16 & 21 of the Constitution of India and consequently the petitioner pray this Hon'ble Court may be pleased to direct the respondents to reinstate the petitioner into service along with all consequential benefits in the interest of justice and fair play."
2) Heard Sri V. Narasimha Goud, learned counsel for the petitioner, and learned Special Government Pleader representing the learned Government Pleader for Home appearing for the respondents.
3) Learned counsel for the petitioner has submitted that the petitioner has joined the services of the third respondent Office as Home Guard on 07.01.2004 after undergoing due selection process. While so, he was removed from service vide impugned order dated 12.04.2022 on the ground that he was involved in a criminal case being crime No.69 of 2020, dated 14.04.2020, of P.S. Narsampet. After filing of charge sheet, the same was numbered as C.C. No.454 of 2020 on the file of Judicial I Class Magistrate, Narsampet, against the petitioner and three others. Learned counsel has further submitted that as per the provisions of Telangana 2 PK,J W.P.No.20176 of 2022 Home Guards Act, 1948, and the Rules envisaged thereunder, Home Guard is a Public Officer. As such, the petitioner is holding a civil post and the petitioner is a public servant and thereby protected by Article 311 of the Constitution of India. It is further contended that the third respondent has removed the petitioner from service basing on the Committee proceedings in C.No.81/RI-Hgs/WCP/2022, dated 06.04.2022, however, a copy of the same was neither furnished to the petitioner nor the same was referred to in the show cause notices dated 18.04.2020 and 26.04.2020. Therefore, the impugned order is in violation of the principles of natural justice. Learned counsel has further contended that though the impugned proceedings were issued removing the petitioner from service on the ground that he was involved in a criminal case, but, the said criminal case was ended in acquittal after full-fledged trial vide judgment dated 28.07.2022 rendered by the Judicial Magistrate of First Class at Narsampet in C.C. No.454 of 2020. Therefore, the learned counsel has prayed this Court to quash the impugned proceedings. Reliance has been placed on:
1) State of Uttaranchal v. Kharak Singh 1;
2) State of Assam v. Kanak Chandra Dutta 2;
3) Ram Lal v. State of Rajasthan 3; and
4) V. Sadasiva v. The State of Andhra Pradesh 4.
1 (2008) 8 SCC 236
2 AIR 1967 SC 884
3 2023 (16) SCALE 77
4 2021 (4) ALD 21
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W.P.No.20176 of 2022
4) Per contra, the learned Special Government Pleader has contended
that during Covid-19 lockdown period, the petitioner was involved in illegal activities by helping others in transporting IML bottles home scaled wine shop from Narsampet to Hanamkonda. Therefore, a criminal case was registered against the petitioner besides issuing show-cause notices dated 18.04.2020, 24.06.2020 and 10.02.2021 and the same were served on the petitioner with instructions to submit his explanation. After considering the explanation received from the petitioner and only after conducting proper enquiry in the matter, the petitioner was removed from the rolls of Home Guards Organization, Warangal, vide D.O.No.7/2022 dated 12.04.2022 after following due process in terms of the instructions contained in Chief Officer Circular Memorandum C.No.167/HGs/Estt- 1/2012, dated 15.02.2012 read with No.67/HGs/Estt-1/2012, dated 18.09.2012. Learned Special Government Pleader has further contended that as the petitioner was involved in a criminal case, an independent enquiry was conducted by the Assistant Commissioner of Police, Mamnoor, wherein it was clearly established that the petitioner has intentionally committed the crime of transporting liquor in Ertiga Car by violating lock- down guidelines during the pandemic lockdown period and he also arranged Peak-Cap behind the front glass exposing Police indication though he is not entitled to wear Peak-cap and thereby committed serious offence and badly damaged the integrity of Department and degraded the 4 PK,J W.P.No.20176 of 2022 Police image in front of the common public. Therefore, the respondents are justified in removing the petitioner from service and prayed to dismiss the writ petition. Reliance has been placed on Deputy Inspector General of Police v. S. Samuthiram 5.
5) This Court has taken note of the submissions made by respective counsel.
6) A perusal of the record, more particularly, the impugned removal order dated 12.04.2022 reveals that the removal of the petitioner is based on the Committee proceedings in C.No.81/RI-Hgs/WCP/2022, dated 06.04.2022, a copy of which was, admittedly, not furnished to the petitioner, due to which, the petitioner was deprived of his valuable right of effective defence. In this regard it is apt to refer the judgment in Managing Director, ECIL, Hyderabad v. B. Karunakar 6 wherein the Hon'ble Supreme Court has held as under:
"Hence, when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice."
5 (2013) 1 SCC 598 6 (1994) ILLJ 162 SC 5 PK,J W.P.No.20176 of 2022
7) Similarly in Kharak Singh's case (referred supra), the Hon'ble Supreme Court has held as under:
"13. Another infirmity in the report of the enquiry officer is that he concluded the enquiry holding that all the charges have been proved and he recommended for dismissal of the delinquent from service. The last paragraph of his report dated 16.11.1985 reads as under:
During the course of above inquiry, such facts have come into light from which it is proved that the employee who has doubtful character and does not obey the order, does not have the right to continue in the government service and it is recommended to dismiss him from the service with immediate effect.
(emphasis supplied) Though there is no specific bar in offering views by the enquiry officer, in the case on hand, the enquiry officer exceeded his limit by saying that the officer has no right to continue in the government service and he has to be dismissed from service with immediate effect. As pointed out above, awarding appropriate punishment is the exclusive jurisdiction of the punishment/disciplinary authority and it depends upon the nature and gravity of the proved charge/charges and other attended circumstances. It is clear from the materials, the officer, who inspected and noted the shortfall of tress, himself conducted the enquiry, arrived at a conclusion holding the charges proved and also strongly recommended severe punishment of dismissal from service. The entire action and the course adopted by the enquiry officer cannot be accepted and is contrary to the well- known principles enunciated by this Court.
14. A reading of the enquiry report also shows that the respondent herein was not furnished with the required documents. The department's witnesses were not examined in his presence. Though the respondent who was the writ petitioner specifically stated so in the affidavit before the High Court in the writ proceedings, those averments were specifically controverted in the reply affidavit filed by the department. Mere denial for the sake of denial is not an answer to the specific allegations made in the affidavit. Likewise, there is no evidence to show that after submission of the report by the enquiry officer to the disciplinary authority, the 6 PK,J W.P.No.20176 of 2022 respondent herein was furnished with the copy of the said report along with all the relied upon documents. When all these infirmities were specifically pleaded and brought to the notice of the appellate authority (i.e.Forest Conservator), he rejected the same but has not pointed the relevant materials from the records of the enquiry officer and disciplinary authority to support his decision. Hence, the appellate authority has also committed an error in dismissing the appeal of the respondent."
8) In view of the above settled principle of law, the failure on the part of the respondents in not furnishing the necessary documents on the petitioner is a lapse on their part, which cannot be countenanced.
9) That apart, a perusal of the impugned proceedings further discloses that the petitioner was removed from service on the ground that he was involved in a criminal case. However, the said criminal case was ended in acquittal vide judgment dated 28.07.2022 passed by the competent criminal court i.e. Judicial Magistrate of First Class, Narsampet, in C.C. No.454 of 2020.
10) In similar circumstances, the Hon'ble Apex Court in Ram Lal's case (referred supra), has held as under:
"24. What is important to notice is that the Appellate Judge has clearly recorded that in the document Exh.P-3-original marksheet of the 8th standard, the date of birth was clearly shown as 21.04.1972 and the other documents produced by the prosecution were either letters or a duplicate marksheet. No doubt, the Appellate Judge says that it becomes doubtful whether the date of birth was 21.07.1974 and that the accused was entitled to receive its benefit. However, what we are supposed to see is the substance of the judgment. A 7 PK,J W.P.No.20176 of 2022 reading of the entire judgment clearly indicates that the appellant was acquitted after full consideration of the prosecution evidence and after noticing that the prosecution has miserably failed to prove the charge.
25. Expression like "benefit of doubt" and "honorably acquitted", used in judgments are not be understood as magic incantations. A court of law will not be carried away by the mere use of such terminology. In the present case, the Appellate Judge has recorded that Exh.P-3 the original marksheet carries the date of birth as 21.04.1972 and the same has also been proved by the witnesses examined on behalf of the prosecution. The conclusion 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 can only be arrived at after a reading of the judgment in its entirety. The court in judicial review is obliged to examine the substance of the judgment and not go by the form of expression used."
11) Further, according to the petitioner, the post of Home Guard is a Civil post. As such, he is a public servant and is protected by Article 311 of the Constitution of India. The said issue viz., 'Whether the Home Guards are holding civil post in State Service? If so, whether the impugned proceedings to terminate/removal/dismissal of Home Guards cancelling their enrolment in the Home Guards Organisation without conducting any enquiry, is violative of Article 311 (2) of the Constitution of India?' fell for consideration before the High Court of Andhra Pradesh in V.Sadasiva's case (referred supra) wherein it has been held as under:
"62. Therefore, the standing orders in A.P. Police Manual are not the rules framed by exercising power under Section 10 of the A.P. Home Guards Act. Thereby, Chapter 52 of the A.P. Police Manual cannot be applied to govern the conditions of enrolment and discipline in the Home Guards Organisation. Hence, 8 PK,J W.P.No.20176 of 2022 the contention of the learned Government Pleader for Services-I is hereby rejected while holding that the petitioners are not governed by Chapter 52 of the A.P. Police Manual. Accordingly, the point is held in favour of the petitioners and against the respondents.
121. However, as discussed above, the Home Guards are holders of Civil post by applying the principles laid down in "State of Assam v. Kanak Chandra Dutta" and Satyavir Singh v. Union of India" (referred supra) as there is no explanation in the A.P. Home Guards Act as contained in U.P. Home Guards Act. For removal of Home Guard, necessary procedure prescribed under rules and Act is to be adhered to strictly.
122. The petitioners raised a specific contention that they are holding civil post and dismissal/removal/termination of their services without conducting enquiry is hit by Article 311 (2) of the Constitution of India. The respondents refuted the said contention, but did not convince this Court that the petitioners are not holding civil post to fall within the definition of 'category of persons holding civil post.' Therefore, analyzing the law laid down by the Apex Court in various judgments including constitutional bench judgment of "State of Assam v. Kanak Chandra Dutta" (referred supra), I hold that the petitioners/Home Guards are holding Civil Post, and no punishment be imposed against them without conducting any enquiry in view of Article 311 (2) of the Constitution of India. Accordingly, the point is held against the respondents and in favour of the petitioners holding that the Home Guards are holders of Civil Post and they cannot be removed from service except by conducting necessary enquiry."
12) In view of the above principle of law, this Court is of the considered view that the petitioner is a public servant and it is obligatory on the part of the respondents to conduct an enquiry before passing the impugned removal order.
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13) For the aforesaid reasons, the Writ Petition is allowed and the impugned removal order dated 12.04.2022 is set aside directing the respondents to reinstate the petitioner into service, afresh, subjecting the petitioner to fitness test to ascertain his fitness before being reinducted into service as a Home Guard.
Miscellaneous applications, if any, pending in this writ petition shall stand closed. No costs.
__________________________ PULLA KARTHIK, J Date: 14.06.2024 sur