Nageswaram Pedanarasimhulu vs State Of Andhra Pradesh,
2021 Latest Caselaw 4568 AP

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


                      W.P.No.15686 of 2021
ORDER:

This writ petition is filed for a Mandamus declaring the

action of the second respondent in issuing proceedings dated

22.01.2021 by confirming the order of dismissal from service

as illegal, arbitrary and violation of principles of natural

justice and to set aside the order dated 18.07.2020 and to

direct that the petitioner should be reinstated into service

with all benefits.

This Court has heard Sri C.Subodh, learned counsel for

the petitioner and Sri Ashwartha Narayana, learned

Government Pleader for Services-I appearing for respondents.

The case of the petitioner is that he has been found

guilty in disciplinary proceedings of an alleged offence of

committing rape on a woman in a pilgrim place and that since

the petitioner is a member of uniformed forces, this was held

to gross dereliction of duty and he was dismissed.

Learned counsel for the petitioner argues that neither

the original order of punishment that is imposed on

18.07.2020 nor the appellate order issued by the second

respondent on 22.01.2021 are valid in law. He points out

that the disciplinary authority did not have any material or

evidence to come to a conclusion that the petitioner was

guilty of the offence. It is his contention that the prime

witnesses PWs.1 to 3 did not depose against the petitioner

and that they clearly stated that the offence did not occur. It

is also argued that on the very same charges, S.C.No.404 of

2012 that was filed ended in an acquittal on 26.04.2018. He

points out that this judgment was also submitted to the

second respondent when the appeal was filed. Learned

counsel for the petitioner argues that 9 years after the

acquittal, the petitioner was punished. It is his contention

that as a quasi judicial authority, the disciplinary authority

had a duty to impose the punishment only after going into the

evidence. Since the trial witnesses did not support the case

of the prosecution or the departmental enquiry, learned

counsel argues that the petitioner is entitled to the reliefs.

On identical issues, he points out that the Enquiry Officer

held the petitioner to be guilty whereas the Court found him

not guilty. Learned counsel relies upon the judgements in

WP.No.24286 of 2005, WP.No.16104 of 2013 and State of

Andhra Pradesh v. N.Radhakishan1 and also the

judgement in Karnataka Power Transmission Corporation

Limited v. C.Nagaraju and another2.

In reply to this, learned Government Pleader for

Services-I argues that the acquittal in the criminal case is not

an honourable or a clean acquittal. He argues that the

witnesses turned hostile by the petitioner and therefore in

(1998) 4 SCC 154

(2019) 10 SCC 367

view of lack of evidence, the criminal Court acquitted the

petitioner. He submits that in the departmental enquiry,

there is certain material available to punish the petitioner.

He points out that in a departmental enquiry, the

preponderance of probabilities are enough to impose

punishment. It is also submitted that if there is some

evidence available, this Court cannot interfere. It is argued

that the appreciation of evidence is a matter for the

disciplinary authority only and this Court can only interfere

on certain limited grounds. He points out that strict rules of

evidence are not applicable. Relying upon the copy of the

enquiry report dated 23.12.2010, learned Government

Pleader points out that there is an analysis and assessment of

evidence before the conclusions are reached. Relying upon

the evidence that is found, the Enquiry Officer came to the

conclusion that the petitioner is guilty. Learned Government

Pleader also relies upon the Karnataka Power

Transmission Corporation Ltd., case (2 supra), cited by the

learned counsel for the petitioner to argue that the standard

of proof etc., are different. He also points out that in that

case also the witnesses turned hostile in the criminal case.

Learned Government Pleader points out that the acquittal of

the respondents in the criminal case was due to non-

availability of any evidence, but the punishment imposed in

the departmental enquiry was on the basis of the report of an

Enquiry Officer, who had some evidence before him.

Therefore, he points out that the order of dismissal is upheld.

He also relies upon Deputy Inspector General of Police and

another v. S.Samuthiram3 to argue that where the acquittal

in a case is not an honourable acquittal at all, the petitioner

cannot rely upon the acquittal in the criminal case to seek

orders.

COURT: This Court after considering the submissions

and in view of the settled law, which need not be repeated

here again, is of the opinion that this Court's jurisdiction in

these matters particularly with regard to the appreciation of

evidence is very limited. It is also a fact that the Evidence Act

will not apply to departmental proceedings. The Enquiry

Officers are the sole judges of evidence. The adequacy of

evidence or the reliability of evidence are not matters which

can be canvassed before the high Court in such matters

under Article 226 of the Constitution of India. The leading

judgements in State of Haryana and Ors. vs. Rattan

Singh4 and R.De Sequaira v. Government of Andhra

Pradesh and Ors.5 are referred to for the sake of good order.

This Court can only interfere when the findings of the

Enquiry Officer are utterly perverse; based upon no evidence;

in violation of rules of natural justice or contrary to the rules

governing the enquiry.

(2013) 1 SCC 598 4 (1977) 2 SCC 491 5 1975 (1) SLR 862

If the case on hand is examined against the backdrop of

the settled legal position, it is apparent that the report of the

disciplinary authority shows that he was convinced of the

guilt of the petitioner on an 'analysis of the evidence'. He

noticed the fact that PWs.1 to 3 did not speak anything

against the Charged Officer and turned hostile. However, he

relied upon the other evidence like identification of the

accused in the identification parade, the evidence of other

witness like the Mutt Manager; home guard etc., which

showed that the delinquent bolted the door from outside

when Guptha went into the room to wear his trousers and

that the woman was taken to the terrace. The home guard's

presence at that time to deliver the delinquent's motor cycle is

clear. Considering the evidence of other witnesses, he came

to the conclusion that the petitioner was guilty of the offence.

The law on the subject is also clear and even hearsay

evidence is admissible in a departmental enquiry (J.D. Jain

v. Management of State Bank of India - AIR 1982 SC 673).

In the opinion of this Court, there was some evidence that is

available for the Enquiry Officer to come to the conclusion.

As repeatedly held by the Supreme Court of India, the

standard of proof in a departmental enquiry is different from

that in a criminal case. The actions of the delinquent in

bolting the door from outside, taking the woman upstairs and

evidence of the other witnesses who are in a way

contemporaneous witnesses are factors available for the

Enquiry Officer to come to a conclusion. He was satisfied

with the same. This Court does not find any reason to

disagree with the findings in view of the settled law on the

subject. It is not a case of 'no evidence' at all. The Enquiry

Officer had some evidence/material to come to this

conclusion.

Therefore, this Court holds that the order dated

18.07.2020 cannot be set aside. It is upheld.

Coming to the order passed in appeal on 22.01.2021,

this Court notices that the petitioner is on a stronger footing.

The petitioner has also submitted a copy of the judgment in

SC.No.404 of 2012 dated 26.04.2018 along with the grounds

of his appeal. He raised certain issues in the grounds of

appeal. However, the order dated 22.01.2021 does not

discuss these issues in detail. The order merely states that

the appellate authority and the second respondent has gone

through the appeal record; that the averments put forth by

the appellant are not convincing and then he talks about the

standard of proof. In matters of this nature, the law is very

well settled. There should be reasons to support the

conclusion. There should be a discussion of the issues raised

before the conclusion is arrived at. The same is lacking in

this case. Hence, this Court is of the opinion that the order

dated 22.01.2021 passed by the second respondent is to be

set aside for lack of reasons.

Coming to the case laws cited by the petitioners and the

respondents, this Court finds that in S.Samuthiram's case

(3 supra), Supreme Court clearly dealt with case of an

honourable acquittal. In para 24, it is clearly specified that

when the accused is acquitted, after full consideration of the

prosecution evidence and the prosecution failed to prove the

charges, the Hon'ble Supreme Court said that the accused

can be said to be honourably acquitted. In the case on hand,

such an honourable acquittal is not there, because the

witnesses in the criminal trial turned hostile. In

WP.No.24286 of 2005 also, the witnesses in the criminal case

turned hostile. The Division Bench cited with approval the

judgement of the Supreme Court in Corporation of the City

of Nagpur Civil Lines, Nagpur v. Ramachandra6, wherein

the Supreme Court held that only when the accused was

acquitted honourably and completely exonerated, it would be

necessary for the disciplinary authority to look into the order

of acquittal. It is clearly held that merely because the

accused is acquitted, the power of the authority concerned to

continue the departmental enquiry is not taken away.

In WP.No.16104 of 2013 also, the Bench clearly held

that although an acquittal is recorded in a criminal

proceedings, it is open to the authority to enquire into the

charges, but if the charges framed in both the criminal and

6 (1981) 2 SCC 714

disciplinary proceedings are one and the same and the

evidence is also the same, the acquittal should be considered.

However, in the present case, apart from PWs.1 to 3,

who turned hostile, there is other evidence which was

considered by the disciplinary authority. The acquittal in

SC.No.404 of 2012 is also not an 'honourable acquittal". The

acquittal in SC.No.404 of 2012 is also not an 'honourable

acquittal'. The case of N.Radhakishan (1 supra) was a case

of undue delay and prejudice.

In the present case, this Court notices although there is

delay, the petitioner also participated in the disciplinary

proceedings, he submitted an appeal to the authority

concerned etc. So he cannot say on the ground of delay the

proceedings should be dropped. The judgement in

Karnataka Power Transmission Corporation Ltd.,'s case

(2 supra), is in the opinion of this Court more applicable to

the facts of the case. In that case, the Hon'ble Supreme

Court noticed that the acquittal of the delinquent in the

criminal case was due to non-availability of any evidence,

whereas the order of dismissal was on the basis of report of

the Enquiry Officer before whom some evidence was available.

These findings are found in paras 11 to 13 of the order.

Last question that arises is what is the relief to be

granted to the petitioner. There are two prayers in this writ

petition, which are directed against the other dated

22.01.2021 and the earlier order dated 18.07.2020.

This Court finds a flaw in the other dated 22.01.2021

only. The same is set aside but directing reinstatement

cannot arise at this stage. The appellate authority can either

agree with the findings of the Enquiry Officer or he can

disagree with the findings of the Enquiry Officer. Till this is

done, a complete order of reinstatement etc., cannot be

passed. Therefore, as the grounds of appeal documents etc.,

are already available with the second respondent, there shall

be a direction that the second respondent shall within a

period of four weeks from the date of receipt of a copy of this

order examine the entire appeal afresh and the pass a

reasoned, detailed order deciding the appeal.

With these observations the writ petition is partially

allowed. No order as to costs. As a sequel, the

miscellaneous petitions if any pending shall stand dismissed.

___________________________ D.V.S.S.SOMAYAJULU, J Date: 10.11.2021 KLP