Andhra Pradesh High Court - Amravati

T Venkataswamy vs The State Of Andhra Pradesh on 2 August, 2022

Bench: K Manmadha Rao

        HON'BLE DR. JUSTICE K. MANMADHA RAO

       WRIT PETITION Nos.28512 and 28559 of 2021


COMMON ORDER :

      As the issue involved in both the writ petitions is one

and the same, these matters are taken up together for

disposal by this Common Order.


      2. The facts in these two writ petitions are similar and

identical, therefore W.P.No.28512 of 2021 is taken as lead case

and the facts therein are referred to for convenience:


      The petitioner was enlisted as ARPC in the year 1991 and

thereafter converted as Police Constable (Civil) in Guntur

District and working as such to the utmost satisfaction of the

superiors.   The petitioner was suspended from service vide

proceedings in C.No.4758/45/2017, dated 24.01.2017 of the

4th respondent on the allegation that he was exhibited gross

misconduct by misusing the official position threatened and

robbed cash of Rs.500/- from the complainant Sri Kaku

Madhav Rao from his pocket and gold ring from Peddi

Harshitha. It is further stated that after six months the 4th

respondent revoked the suspension order vide proceedings in

C.No.4758/A5/2017, dated 23.06.2017 and posted to

Medikonda Police station and accordingly he joined duties.

While the matter stood thus, in C.C.No.69 of 2018, the

learned Judicial First Class Magistrate for Railways, Guntur

vide judgment dated 08.06.2018 acquitted the petitioner,

which reads as under:

"Accused A1 and A2 are not found guilty of the offences punishable under Sections 354, 392, 506, 323 r/w Section 34 of Indian Penal Code and accordingly they are acquitted under Section 248 (1) of Cr.P.C. The bail bonds of the accused A1 and A2 that were executed by them, shall stands cancelled after expiry of period of six months from the date of pronouncement of this judgment as the provisions of Section 437(A) of Criminal Procedure Code."

It is further stated that after suspension, the petitioner

was served with Charge Memo dated 12.04.2017 and

appointed an Inquiry Officer vide proceedings dated

24.06.2017. Thereafter the petitioner made representations

dated 6.4.2019 seeking exoneration from the charges leveled

against him by enclosing the above order passed in C.C No.69

of 2018. However, the 4th respondent contrary to evidence and

also contrary to the Rules held that the charges leveled against

the petitioner are proved. It is further stated that after receipt

of the enquiry report dated 6.5.2019 the 4th respondent herein

issued show cause notice dated 12.05.2019 and 20.06.2019

calling explanation from the petitioner. Thereafter, the

petitioner submitted his explanation to the 4th respondent on

16.07.2019 seeking reinstatement into service. Without

taking into consideration of his explanation, the 4th respondent

has issued impugned proceedings dated 15.02.2020.

Questioning the same, the petitioner preferred an appeal before

the 3rd respondent. The 3rd respondent has considered and

rejected the appeal vide proceedings No.C.No.27/APPL/2020,

dated 10.06.2020. it is further stated that contrary to

evidence available during the oral enquiry, the enquiry officer

held that the allegations against the petitioner proved most

unjustify basing on such minutes the disciplinary authority

awarded punishment of 'dismissal from service' which is not in

accordance with the Andhra Pradesh Civil Services

(Classification, Control and Appeal ) Rules, 1991 (for short

"APCS (CC&A) Rules 1991"). Against the rejection order, the

petitioner preferred Revision Petition before the 2nd respondent

on 22.06.2020 but the 2nd respondent has rejected the same

vide proceedings D.Dis.No.556/T4/2020, dated 02.11.2021

without taking into consideration the grounds raised in the

appeal. Hence, the present writ petition.

4. Counter affidavits are filed in these two writ petitions

taking the same stand and for convenience, the averments in

the counter in first W.P.No.28512 of 2021 are stated as under:

The respondents while denying all the averments made in

the petitions contended that as per the statements of witnesses

PWs.5 to PW.9 the allegations against the applicant was

substantiated. As per the preponderance of probabilities the

evidence adduced from the witnesses and documentary

evidence during the oral enquiry and the charge was held

"Proved". It is further stated that the criminal case was

acquitted against the applicants vide CC.No.69 of 2018 dated

08.06.2018 on the file of Judicial First Class Magistrate for

Railways, Guntur. The Court had merely stated that the

prosecution failed to prove the allegations against the

applicants. In oral enquiry, the preponderance of probabilities

the evidence adduced from the 9 witnesses and documentary

evidence was substantiated to prove the guilt of the applicants.

The applicants disregarded the powers of administration and

took the law into their hands and behaved unruly. It is further

stated that the witness (LW.1) resiled from his statement and

the content of his report which was registered as FIR in this

case. In his report the LW.1 mentioned the name of the

applicants. All the four witnesses were influenced or

compromised by the applicants. PW.1 and PW.2 turned hostile

in the Court and due to which the case was acquitted.

It is further stated that as per the statements of

witnesses PW.5 to PW.9 the allegations against the applicants

was substantiated. As per the preponderance of probabilities

the evidence adduced from the witnesses and documentary

evidence during the oral enquiry and the charge was held

proved. The applicants with mala fide intention for securing

wrongful gain, robbed an amount of Rs.700/- from the

complainant K. Madhava Rao and gold ring from Peddi

Harshitha (PW.2) and thereby involved in criminal case in

Cr.No.35/2017 under Sections 354, 392, 506, 323 r/w 34 IPC

of Nallapadu PS, Guntur Urban. The applicants/Accused were

arrested on 21.10.2017 at 9.00 AM and sent for judicial

remand. During the investigation, they confessed about the

commission of offence before Inspector of Police, Nallapadu PS

and gold ring was recovered from their possession. It is further

stated that the appellate authority and revisional authority are

at liberty to dispose of the appeal/revision petitions based on

merits of the delinquency. It is submitted that the applicants

were imposed the penalty of 'dismissal from service' keeping

the seriousness of the delinquency committed. They are the

members of disciplined force ought to have protected the public

from unsocial elements. As against the applicants behaved

unruly with the public which cannot be excused. Hence,

prayed to dismiss the petition.

4. Heard learned counsel appearing for the petitioners

and learned Government Pleader of Services-I appearing for the

respondents.

5. Learned counsel appearing for the petitioners argued

that the Judicial Magistrate of First Class for Railways, Guntur

in its judgment dated 08.06.2018 in C.C.No.69 of 2018

acquitted the petitioners and the said acquittal is Hon'ble

acquittal and not on any technical grounds and it was duly

examining the witnesses i.e., complainant K. Madhava Rao and

Peddi Harshitha during the trial of the case. He contended

that the said acquittal was as early as on 08.06.2018 i.e.,

much earlier before examination of the witnesses by the

inquiry officer during the oral enquiry. He further contended

that the allegations are same both in the criminal case as well

as departmental enquiry. When once the competent Court has

found the petitioners not guilty and acquitted them, the

disciplinary authority has no right to proceed further with the

departmental enquiry on the basis of the self same allegations

and impose penalty. It amounts to overruling the judgment of

the competent Criminal Court and it is not permissible under

law. Learned counsel has also placed reliance on a case of

G.M. Tank vs. State of Gujarat and others1, wherein it was

held that in a case where the same set of facts, charges

evidence and witnesses are involved in the criminal case and

departmental proceedings, if the criminal case ends in

acquittal on merits, the departmental enquiry should not be

proceeded.

6. Learned counsel for the petitioners further contended

that the respondents without conducting elaborate enquiry and

decided that the petitioners are found guilty and mechanically

passed the impugned order against the petitioners, which is

not in accordance with law and requested to remand the

matter to the respondents for conducting elaborate enquiry

and final report.

7. On the other hand, learned Government Pleader for

Services-I argued that there is no need to consider the plea of

the applicants as they were rightly imposed the penalty of

dismissal of service keeping the seriousness of the delinquency

committed. As they were working in disciplined force, they

should have protected the property of the public as against

they robbed misused their officials powers. Learned

Government Pleader further contended that basing on the

allegations and enquiry report, the 4th respondent issued the

2006 (5) Supreme Court cases 446

impugned proceedings dated 15.02.2020. He further contended

that he has no objection to remand back the matter to the 4th

respondent for fresh consideration.

8. In view of a close scrutiny of the impugned order

shows, as rightly argued by learned counsel for petitioners,

after noting in detail the allegations in the report, the 4th

respondent issued impugned proceedings, without conducting

any enquiry in accordance with law.

9. Therefore, it is needless to emphasize the order is

devoid of reasons and bereft of following the principles of

natural justice. In similar circumstances, a learned Single

Judge of High Court of Andhra Pradesh at Hyderabad, having

found that no opportunity of hearing was afforded to the

petitioner therein and his explanation was not considered by

the authority, set aside the impugned order of termination of

the petitioner therein from the service and directed the

concerned authority to pass appropriate order after affording a

personal hearing to the petitioner. The said order squarely

applies to the facts of the case on hand.

10. No doubt, it is argued by learned Counsel for

respondents that an appeal provision is provided in the

concerned rules and thereby the writ is not maintainable. I am

not convinced with this argument for the reason, in the instant

case there is a discernible violation of principles of natural

justice as noted supra.

11. Though admittedly the petitioners submitted their

written explanations, the same were not considered and no

personal hearing was also granted to the petitioners at the time

of enquiry. Therefore, the writ petitions are maintainable.

12. In Whirlpool Corporation Vs. Registrar of Trade

Marks, Mumbai and others2 regarding maintainability of writ

petition in the context of availability of alternative and

efficacious remedy, the Apex Court held thus:

14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, prohibition, Qua Warranto and Certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose".

15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this court not to operate as a bar in at least three contingencies, namely, where the Writ Petition has been filed for the enforcement of any of the Fundamental rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged (emphasis supplied).

13. The instant cases fall in one of the exceptions carved

out by the Apex Court, the principles of natural justice is a

casualty here.

14. Having regard to the facts and circumstances of the

case and submissions of the both the counsel, the impugned

proceedings in C.No.05/A5/OE-PR/2017, D.O.No.94/2020

dated 15.02.2020 issued by the 4th respondent against the

petitioners are hereby set aside and the matters are remanded

AIR 1999 SC 22 = MANU/SC/0664/1998

to the 4th respondent to conduct elaborate enquiry by giving

opportunity to the petitioners and pass appropriate orders in

accordance with law, within a period of eight (08) weeks from