Pippalla Tharaka Rama Krishna Rao vs The State Of Andhra Pradesh
2023 Latest Caselaw 320 AP

      HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

               MAIN CASE No.: W.P.No. 1494 of 2023

                         PROCEEDING SHEET

SL.                                                                OFFICE
      DATE                         ORDER
No.                                                                 NOTE

 01. &24.01.2023
HCJ    RSR, J NV, J:

                       The present writ petition is filed under
               Article 226 of the Constitution of India, for the
               following relief:

                       "...to issue a Writ, Order or
                       Direction, more particularly one in
                       the nature of Writ of Mandamus,
                       declaring the order of the 3rd
                       respondent                     vide

Proc.Rc.No.479/R1A/2021, dated 28.12.2022 as bad, arbitrary, contrary to the provisions of A.P.C.S. (CC&A) Rules, 1991 apart from being violative of Article 311 (2) of Constitution of India and settled proposition of law regarding imposition of major penalty and to pass such other or further orders as are deemed fit and proper in the circumstances of the case." (in verbatim) Heard learned counsel for the petitioner and learned Government Pleader for the respondents.

Learned counsel for the petitioner would submit that the petitioner was Graduate in

NV, J W.P.No.1494 of 2023 SL. OFFICE DATE ORDER No. NOTE Science with Certificate in Primary Medical Health Service and joined in service as Assistant Health Inspector and have rendered service of 23 years in the Department of Medical & Health Service with unblemished record, including till date. At present the petitioner is working as M.P.H.S. (M) in Siddhartha Medical College, Vijayawada. While so, the 3rd Respondent issued show cause notice for imposing penalty of dismissal from service vide Rc.No.479/R1A/2021 dated 09.08.2021 seeking explanation as to why the major punishment of dismissal from service under Sub Clause (X) of Rule 9 read with Sub Rule (1) of Rule 25 of Andhra Pradesh Civil Services (CC&A) Rules, 1991, should not be awarded against the petitioner. Then, the petitioner submitted his explanation dated 24.08.2021 to the show cause notice through proper channel. Despite his explanation, the 3rd respondent issued an order dismissing the petitioner from service vide Proc.Rc.No.479/R1A/2021, dated 28.12.2022, stating that the petitioner was found guilty of offence under Section 138 r/w Section 142 of N.I. Act and convicted under Section 255 (2) of Cr.P.C and in view of the said conviction,

NV, J W.P.No.1494 of 2023 SL. OFFICE DATE ORDER No. NOTE the retention of the petitioner in public service is not desirable. It is submitted that the 3 rd respondent said to have exercised power conferred under Rule 9 (X) of A.P.CS. (CC&A) Rules, 1991 r/w Government Memo No. 1621/SPL.B/2000-1 GA (SPL-B) Department dated 26.11.2001 and dismissed the petitioner from service when he was working as M.P.H.S. (M) in Siddhartha Medical College, Vijayawada.

It is relevant to submit here that as a matter of principle, in Service Law, under second proviso to Article 311 (2) of the Constitution of India and on a rule similar to Rule 25 (1) of the A.P.C.S. (CC&A) Rules, 1991, which has been settled by the Constitution Bench of the Hon'ble Supreme Court in Tulsiram Patel's case that where a Disciplinary Authority comes to know that a Government servant has been convicted on a criminal charge, it must consider whether his conduct which has led to his conviction was such as warrants the imposition of a penalty and if so, what that penalty should be. For that purpose, it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case and the various

NV, J W.P.No.1494 of 2023 SL. OFFICE DATE ORDER No. NOTE factors set out therein. However, same has to be done by it ex-parte and by itself. Once the Disciplinary Authority reaches the conclusion that the Government Servant's conduct was such as to require his dismissal or removal from service or reduction in rank, he must decide which of these three penalties should be imposed on him. The Disciplinary Authority, however, must bear in mind that a conviction on a criminal charge does not automatically entail dismissal, removal or reduction in rank of the concerned Government Servant. Having decided which of these three penalties is required to be imposed, he has to pass the requisite order.

Learned counsel for the petitioner would submit that the impugned order dated 28.12.2022 is contrary to the provisions of A.P.C.S. (CC&A) Rules, 1991 and violative of Article 311 (2) of the Constitution of India and the authority cannot pass such order under Rule 9 of A.P.C.S. (CC&A) Rules, 1991 on the ground that the petitioner has been convicted under Section 225 (2) of Cr.P.C. in C.C.No.267 of 2019 as he was found guilty of the offence under Section 138 of Negotiable Instruments Act. He further submits that

NV, J W.P.No.1494 of 2023 SL. OFFICE DATE ORDER No. NOTE admittedly the conviction rendered by the Court below dated 18.12.2021 in C.C. 267 of 2019 on the file of the Additional Judicial I Class Magistrate, Gudivada was suspended in Criminal Appeal No.6 of 2021 on the file of the XI Additional District & Sessions Judge, Krishna. Thereafter, on 07.01.2023, both the parties approached the Lok Adalath for compromise. On recording compromise, the Lok Adalath passed an award acquitting the petitioner herein for the offence punishable under Section 138 of N.I. Act and as per Section 386 (1) of Cr.P.C. Learned counsel further submits that in view of the suspension of the order of the Trial Court in the Criminal Appeal and more over, the present offence said to have been committed by the petitioner does not fall under the offence enumerated either under Rule 9 of A.P.C.S. (CC&A) Rules, 1991 or under Article 311 (2) of Constitution of India. Further, she would submit that the transaction arises out of the employment and moreover, the offence under Section 138 of N.I. Act is civil in nature and the said proceedings cannot be construed as criminal offence as enumerated either under Rule 9 of A.P.C.S. (CC&A) Rules, 1991 or under Article

NV, J W.P.No.1494 of 2023 SL. OFFICE DATE ORDER No. NOTE 311 (2) of Constitution of India. Therefore, the impugned order dated 28.12.2022 is liable to be suspended. She specially relied upon the judgment of the Hon'ble Apex Court in Union of India and another vs. Tulsiram Patel and others1.

Learned Government Pleader for the respondents would submit that the petitioner is dismissed from service basing upon the judgment rendered in C.C.No.267 of 2019 under which he was convicted and sentenced for a period of one year. He would submit that the Appellate Court has suspended the sentence of imprisonment alone but not the conviction. The acquittal which was happened before the Lok Adalath is subsequent to the impugned proceedings. He would further submit that the petitioner also submitted a representation dated 12.01.2022 before the 1st respondent. In view of the same, the present impugned order is not liable to be interferred by this Court.

In view of the law laid down by the Hon'ble Apex Court and in having considered the submissions made by learned counsel for the petitioner, this Court is inclined to suspend

ALT 1985 (Page 1416)

NV, J W.P.No.1494 of 2023 SL. OFFICE DATE ORDER No. NOTE the impugned order dated 28.12.2022, for a period of four (04) weeks.

List the matter on 22.02.2023.

In the meanwhile, learned Government Pleader for the respondents is directed to file counter.

________ NV, J cbn

NV, J W.P.No.1494 of 2023 SL. OFFICE DATE ORDER No. NOTE