M.Naveen Kumar vs The State Of Andhra Pradesh
2021 Latest Caselaw 2643 AP

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      HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU

             WRIT PETITION No.9305 of 2021

ORDER:

This Writ Petition is filed for the following relief:

".....to issue a Writ or order or direction more particularly one in the nature of Writ of Certiorari calling for the records pertaining to the Order made by the respondent No.2 in C.No.07/Appeal- P1/DIG/2020, R.O.No.145/2021, dated 20.03.2021 and the order of dismissal issued by the respondent NO.3 vide D.O.no.978/2019, C.No.50/OEPR/2017, dated 12.12.2019 and declare the same issued as illegal, arbitrary, erroneous, highhanded and without properly appreciating the contentions and the grounds raised in the appeal by the respondent NO.2 and without conducting any proper enquiry as necessitated under the A.P.C.S. (CC&A) Rules, 1991 as nothing but illegal, arbitrary, erroneous, highhanded and violative of the Rules contemplated under the A.P.C.S (CC&A) Rules, 1991 and consequently set aside the same by reinstating the petitioner into service with all attended and consequential benefits and pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case".

This Court has heard Sri A.K. Kishore Reddy, learned

counsel for the petitioner and the learned Government

Pleader for Services-I.

Considering the issues raised this Court requested the

learned Government Pleader for Services-I to cause

production of the original enquiry and the appeal files. Both

the files were produced. Initially orders were reserved on

07.07.2021. Thereafter, on 09.07.2021 certain factual issues

noticed from the file were brought to the notice of the learned

Government Pleader for Services-I. After obtaining

instructions he argued the matter on 16.07.2021. With the

consent of both the parties the Writ Petition itself is taken up

for hearing.

Sri A.K.Kishore Reddy, learned counsel argued for the

petitioner and the learned Government Pleader for Services-I

with the aid of the original files submitted his arguments on

the merits of the matter.

The petitioner before this Court is a Police Constable,

who was dismissed from service pursuant to certain charges

which were framed. The enquiry resulted in an order dated

12.12.2019, passed by the 3rd respondent; and the major

penalty punishment of dismissal from services was awarded.

This was confirmed by orders dated 20.03.2021 passed by

the 2nd respondent on appeal. Both these orders were

impugned in the present Writ Petition.

The first point urged by the learned counsel for the

petitioner is that the 3rd respondent, who has passed an order

of dismissal dated 12.12.2019, was the Investigating Officer

in the very crime, for which the petitioner is accused and that

he participated in the disciplinary enquiry wherein he was

examined as first witness. Therefore, he submits that the 3rd

respondent cannot be both a witness and the disciplinary

authority. Apart from that he also submits that the order

passed by the 3rd respondent does not contain any reasons.

It is a very cryptic order and it relied entirely on the minutes

dated 26.08.2019 issued by the Inquiry Officer. The reply /

defense submitted by the petitioner was ignored. Therefore,

it is argued that as the order is not a speaking order it has to

be set aside. Similarly, with regard to the order dated

20.03.2021 also passed by the 2nd respondent the same

contention is raised. It is argued that it is a very cryptic order

and it does not contain any reasons. He submits that the

contentions raised in the appeal are not even considered

before the order dated 20.03.2021 is passed. Therefore, on

both these grounds the petitioner prays that the proceedings

should be set aside.

In reply to this, learned Government Pleader for

Services-I argued that as the 3rd respondent was the

Investigating Officer at that point of time and was the

Additional Superintendent of Police of Rampachodavaram

Sub Division, he had to give evidence during the disciplinary

proceedings. It is argued that apart from that evidence there

is other evidence of the witnesses which lead the Inquiry

Officer to come to a conclusion that the charges are proved.

Learned Government Pleader for Services-I argues that the

entirety of the report that has to be seen and not merely the

evidence of PW 1. He argues that since PW 1, present 3 rd

respondent, deposed in the inquiry the entire proceedings

cannot be set aside. He also argues that the report of the

Inquiry Officer dated 15.08.2018 is a comprehensive report

which has discussed the entire material available and then

come to conclusions. Basing on the same the 3rd respondent

passed the order dated 12.12.2019. Apart from that he

submits that the grounds of appeal were also considered and

as the appellate authority was not satisfied with the issues

urged by the petitioner the impugned order was passed on

20.03.2021. He contends that the officer concerned had

carefully mentioned that he had considered the statements

of witnesses, evidence on record, departmental proceedings,

minutes of the Inquiry Officer and further statement of

defense of the charged officer. Therefore, learned

Government Pleader for Services-I argues that the orders

cannot be said to be orders without reasons.

This Court after considering the submissions made and

going through the original file has brought these facts and

noticed that Crime No.74 of 2017 was registered on

07.09.2017 against the petitioner. On 09.09.2017 the 3 rd

respondent, as the Additional Superintendent of Police,

Rampachodavaram, recommended the taking of disciplinary

action and noted that the petitioner should be placed under

suspension. The Memorandum of charges were served on

17.11.2017 on the petitioner. The first witness, who was

examined on 05.09.2018, was the 3rd respondent

(Superintendent of Police). In the course of his examination

he clearly deposed that the evidence of witnesses i.e., LWs 1

to 4, LWs 13 to 15 etc., is critical in the case. He clearly

deposed that a case is made out against the accused for an

offence under Section 304-B IPC. In the cross-examination

he deposed that on the date of death of petitioner's wife, the

petitioner was on Court duty at Rajahmundry. He also

deposed that neighbours did not say anything adverse about

the harassment of the petitioner.

In view of this role played by the then Additional

Superintendent of Police, who after his promotion became the

Superintendent of Police (3rd respondent), this Court is of the

opinion that having given evidence against the petitioner and

submitted a preliminary report etc., he could not have been

a dispassionate unbiased disciplinary authority. He had

already come to a conclusion more than once that a case is

made out about the present petitioner. In the very first report

dated 09.09.2017 addressed to the Superintendent of Police,

East Godavari, the then Additional Superintendent of Police

(PW1) clearly states that the accused-Police Constable is

responsible for the death of his wife. He continued to hold

the same view. In that view of the matter, this Court is of the

opinion that he should not have acted as the disciplinary

authority and passed the impugned order dated 12.12.2019.

Apart from that it is also clear that the written

statement of defense submitted by the accused was not taken

note of by the 3rd respondent while passing the Order dated

12.12.2019. The issues raised are not discussed. The

reasons why he has come to a conclusion are not in any way

clear from a reading of this order. Merely stating "I have gone

through the Memorandum of Charges, minutes of the Inquiry

Officer, other communicated records and entire O.E." is not

enough. In the opinion of this Court the final conclusion that

'the explanation of the Charged Officer is not convincing' is

also not enough.

Time and again the highest court of the land and this

Court has emphasized the need for reasons. Any person who

is found guilty of a crime or of a wrong is entitled to know the

reasons why he is being punished. This is the Rule of Law.

The concept of hearing / audi alteram partem is an integral

part of this judicial system. Reasons must exist and they

should be disclosed at least briefly in such cases. They

provide the vital link between the facts and the conclusions.

The higher authority or a Court which is examining the

matter will then know what prevailed with the decision

maker. Reasons are totally lacking in this order. The

judgment of the learned single Judge reported in

W.P.No.11987 of 2020 also followed this dictum. The order

is clearly a non-speaking order. Hence, it is not valid in law.

Even the order passed on 20.03.2021 by the 2nd

respondent suffers from the same vice. The petitioner

submitted an appeal and the same is found in the office file.

The appeal runs into seven pages. Certain issues are raised

in the course of the appeal. The petitioner also pointed out

to Order No.150 of the A.P. Police Manual as legal ground

which holds that once the criminal court takes a cognizance

of a criminal case the departmental proceedings should be

stopped. He also drew the attention of the appellate authority

to the deposition of the witness and his interpretation of their

evidence. He also raised certain other legal and factual

issues. These issues may be true or may be wrong, but the

appellate authority did not discuss the same.

What is stated above about the reasons equally applies

to this order also. In that view of the matter, as there are

virtually no reasons both the impugned proceedings dated

12.12.2019 and 20.03.2021 are hereby set aside.

Accordingly, with the above observation the Writ

Petition is allowed. The entire file with the depositions and

the documents should be referred to an Inquiry Officer not

connected with the present inquiry in any matter for

adjudication and an opportunity of presenting his case

should be given to the petitioner also. The disciplinary

authority should complete the proceedings within a period of

two months from the date of receipt of a copy of this order.

The petitioner also shall not take time and shall cooperate in

the same. Thereafter, depending on the orders passed if an

appeal is preferred the petitioner should be given an

opportunity to present the same. It is needless to say a

reasoned order should be passed at every stage. The

petitioner should also be given an opportunity to file

additional grounds if he so desires. There shall be no order

as to costs. A strict time schedule should be maintained

always.

Consequently, the Miscellaneous Applications, if any,

pending shall stand closed.

__________________________ D.V.S.S.SOMAYAJULU, J

Date:27.07.2021.

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