Andhra Pradesh High Court - Amravati

The State Of Andhra Pradesh, vs D.V.S.J. Raju on 19 April, 2021

                    HON'BLE SRI JUSTICE JOYMALYA BAGCHI
                                    AND
                      HON'BLE SRI JUSTICE M.GANGA RAO

                  WRIT PETITION Nos.26698 & 26699 of 2010
                           (Taken up through video conferencing)


COMMON ORDER: (Per Hon'ble Sri Justice Joymalya Bagchi)


      These writ petitions are directed against the common order dated

21.07.2010 passed by the Andhra Pradesh Administrative Tribunal at Hyderabad

[for short, 'the Tribunal'] in OA.Nos.2268 & 1891 of 2007 setting aside the

charge memo dated 12.04.2007 and directing to regularize the period of

suspension of the 1st respondent herein from 18.09.2005 to 28.05.2006 as 'on

duty' and pay full back-wages, fix his pay as per revised pay scale and release

increments payable to the said employee.

Crux of the charge in the departmental proceedings is as follows:

"....

Reserve Inspector, (Operation), City Armed Reserve, Visakhapatnam city, informed that the Government servant was on medical leave from 28.8.2005 to 17.9.2005 and he had to report for duty on 18.9.2005 F.N with medical fitness certificate. On 17.9.2005, at about 17:30 hours, the Inspector of Police, I Town P.S conducted a raid on the Hindu Reading Room, Visakhapatnam, where gambling was going on. During the raid gamblers including the Government servant were arrested under mediators report.

Sri P.Pydapu Naidu, S.I of Police, Visakhapatnam city, stated in his statement that the Inspector of Police, I Town P.S., along with others and himself conducted raid on the Hindu Reading room on 17.9.2005 at 18:30 hours and arrested the gamblers. While asking the names of the arrested personnel, the Government servant said himself that his name is D.V.S.J Raju, ARPC 261, City Armed Reserve, Visakhapatnam city. The versions of SI. M. Surya Rao and ASI, B. Sai Satya Rao are corroborated with SI P.Pydapu Naidu. This shows the Government servant participated in the gambling.

That by indulging in the above acts of the commissions, the Government servant contravened the A.P Civil Services (conduct) Rules, 1964 and failed to maintain devotion to duty and behaved in a manner unbecoming of a Government servant."

Learned Government for Services - I argues the Tribunal erred in law in

quashing the impugned charge memo on the premise the 1st respondent had

obtained an order of acquittal from the criminal Court. He submitted 1st

respondent had not earned a clear acquittal but the same was based on benefit

of doubt. As standard of proof in the departmental proceeding and criminal

case are different such order ought not to have been passed in view of the law

declared by the Apex Court in Karnataka Power Transmission Corporation

Limited v. C. Nagaraju [(2019) 10 SCC 367].

On the other hand, learned counsel appearing for the 1st respondent

argues that the accusation in the departmental proceedings and the criminal

case are one and the same. His client had obtained an honourable acquittal in

the criminal case and when he sought regularization of the suspension period,

impugned charge memo was issued. Under such circumstances, order of the

Tribunal do not call for interference.

The issue which falls for decision is:

'Whether the Tribunal was justified to quash the departmental

proceedings vide charge memo impugned at the preliminary stage

on the score of acquittal in the criminal case?

We have perused the accusation in the criminal case as well as the

impugned charge memo. In the criminal case, 1st respondent was arrested

along with other accused persons for indulging in gambling activity in a public

place, that i.e. Hindu reading room in violation of Sections 3 & 4 of the A.P

Gaming Act, 1974. He had been arraigned as an accused along with a number

of other accused persons, some of whom pleaded guilty. 1st respondent and

others were placed on trial and as the evidence of the Investigating Officer -

PW3 did not find independent corroboration, 1st respondent had been acquitted

from the charge. On the strength of such acquittal, Tribunal quashed the

charge memo and passed the orders directing the suspension period to be

treated as 'on duty' and other consequential benefits.

Departmental proceedings and criminal case operate in different fields.

The purpose of criminal trial is to punish the offender while initiation of

departmental proceeding is to ensure purity and efficacy in administration and

to impose penalty on an employee, who has conducted himself contrary to the

service rules or in a manner unbecoming of his status. In the present case, the

crux of the charge against the delinquent is that he exhibited gross misconduct

having indulged in gambling and was arrested on 17.09.2005 for such activity

under Sections 3 & 4 of the A.P Gaming Act. Criminal Court, while assessing

the evidence on record, particularly, that of the Investigating Officer - PW3,

recorded that the said officer upon coming to the place of occurrence found

that the accused persons were playing cards and there was cash on the table,

PW3 accordingly seized the cards and the cash from the place of occurrence

and 1st respondent was arrested from the said place. As the mediators

examined in the case turned hostile and did not support the case, the criminal

Court was inclined to extend the benefit of doubt.

In view of the aforesaid materials, we are constrained to observe the

present case is not one of 'no evidence' resulting in a clear acquittal. On the

other hand, criminal Court upon assessment of evidence on the golden rule of

'proof beyond reasonable doubt' had extended the benefit of doubt to the 1st

respondent and acquitted him. Standard of proof in departmental proceedings

however, is completely different from a criminal trial. In a departmental

proceeding, rules of evidence do not apply. Standard of proof is one of

preponderance and not proof beyond reasonable doubt. More so, in the

present case, lack of corroboration was due to the mediators turning hostile.

Even if their evidence is ignored, version of the Investigating Officer - PW3

show that 1st respondent along with others was playing cards in a public place

and there was cash on the table. Whether such materials would lead to an

inference indulging in gambling in a public place on a preponderance of

probability must be left to the independent decision of the employer. In our

considered view, when the evidence on record in a criminal trial does not make

out a case of 'no evidence' leading to a clear acquittal, the Tribunal was not

justified to sound a death knell to the departmental proceeding on such score.

In this regard, reliance on the ratio of the Apex Court in Karnataka Power

Transmission Corporation Limited (supra) is well merited. In the said report

also, the acquittal by the criminal Court was recorded on benefit of doubt as

witnesses had turned hostile. The Apex Court unequivocally held as follows:

'..It is settled law that the acquittal by a criminal court does not preclude a departmental inquiry against the delinquent officer. The disciplinary authority is not bound by the judgment of the criminal court if the evidence that is produced in the departmental inquiry is different from that produced during the criminal trial. The object of a departmental inquiry is to find out whether the delinquent is guilty of misconduct under the conduct rules for the purpose of determining whether he should be continued in service. The standard of proof in a departmental inquiry is not strictly based on the rules of evidence..'

It has also been argued that playing Rummy is a game of skill and the

alleged misconduct does not relate to discharge of public duty by the 1st

respondent. Charge memo alleges that the 1st respondent who is a police

personnel was indulging in gambling along with others in a public place. Act of

gambling is one of moral turpitude and therefore would necessarily fall within

the ambit of gross misconduct by a public servant. Evidence of the police

personnel show that the miscreants were not only playing cards but cash was

found on the table. These materials do not lead an irresistible and unequivocal

conclusion that parties were merely playing a game of Rummy which is one of

skill and the charge is a patently absurd and vexatious one. Hence, we are not

inclined to drop the disciplinary proceeding at this preliminary stage.