Andhra Pradesh High Court - Amravati
S.Mallikarjuna,Anantapur Dist vs Govt.Of Ap,Prl.Scy,Home,Hyd, 5 on 23 October, 2024
1
* THE HONOURABLE SRI JUSTICE RAVI NATH TILHARI
*THE HONOURABLE SRI JUSTICE NYAPATHY VIJAY
+ WRIT PETITION NO: 37212/2013
% 23.10.2024
#1. S. Mallikarjuna
......Petitioner
And:
$1. The Government of Andhra
Pradesh and 5 others
....Respondents.
!Counsel for the petitioners : Sri G. Srinivasula Reddy rep.
Sri N.Chandra Sekhar Reddy
^Counsel for the respondent : Ms. Sravana Sandhya, AGP
<Gist:
>Head Note:
? Cases referred:
1. 2022 SCC OnLine SC 1140
2. (1995) 6 SCC 749
3. (2022) 1 SCC
4. 2023 SCC OnLine AP 1694
2
HIGH COURT OF ANDHRA PRADESH
****
WRIT PETITION NO: 37212/2013
DATE OF JUDGMENT PRONOUNCED: 23.10.2024
SUBMITTED FOR APPROVAL:
THE HON'BLE SRI JUSTICE RAVI NATH TILHARI
&
THE HON'BLE SRI JUSTICE NYAPATHY VIJAY
1. Whether Reporters of Local newspapers Yes/No
may be allowed to see the Judgments?
2. Whether the copies of judgment may be Yes/No
marked to Law Reporters/Journals
3. Whether Your Lordships wish to see the fair Yes/No
copy of the Judgment?
___________________
RAVI NATH TILHARI, J
________________
NYAPATHY VIJAY,J
3
HONOURABLE SRI JUSTICE RAVI NATH TILHARI
HONOURABLE SRI JUSTICE NYAPATHY VIJAY
WRIT PETITION NO.37212 of 2013
ORDER:
(per Ravi Nath Tilhari, J)
Heard Sri G. Srinivasula Reddy, learned counsel representing
Sri N.Chandra Sekhar Reddy, learned counsel for the petitioner and
Ms.Sravana Sandhya, learned Assistant Government Pleader for
Services-I.
2. The petitioner was working as police constable at District Armed
Reserve, Ananthapur. He was issued with proceedings vide
D.No.371/2009, C.No.30/2009 dated 01.05.2009 under Rule 8 of
APCS (CC & A) Rules 1991 imposing him under suspension until the
conclusion of disciplinary proceedings. The enquiry was initiated
against the petitioner in the following charges:
"Exhibited gross misconduct of duty and he snatched away an
amount of Rs.40,000/- from one Bhaskar Sastry at Revenue
colony, Anantapur. Thereby he involved as an accused in
Cr.No.97/09 u/s 392 IPC of Anantapur III Town P.S."
3. The enquiry officer during the course of enquiry examined 4
witnesses and marked the documents as exhibits. He submitted the
report that the charge was proved against the petitioner. Show-cause
notice was issued to the petitioner against the report of the enquiry
officer. Not been satisfied with the petitioner's explanation, the
disciplinary authority accepted the findings of the Enquiry Officer and
imposed the punishment of reduction of time scale of pay by two
stages with effect on future increments and pension. The period of
suspension was treated as not on duty. The order of punishment was
passed on 12.07.2010. The petitioner's appeal was also dismissed by
the appellate authority on 30.10.2010.
4. In the criminal case, the petitioner was acquitted by the order
dated 11.06.2010 passed by the Additional Judicial First Class
Magistrate, Anantapur. The charge in the said case was for the offence
under Section 392 of Indian Penal Code (in short 'IPC'). The learned
Magistrate recorded that the prosecution was not able to prove the
guilt of the accused beyond all reasonable doubt.
5. Challenging the order of punishment and appellate order, the
petitioner filed OA.No.7200 of 2011 before the Andhra Pradesh
Administrative Tribunal, Hyderabad (in short 'the Tribunal') which was
dismissed by an order dated 19.11.2013.
6. The present petition was filed being aggrieved by the order of
the Tribunal.
7. Learned counsel for the petitioner while challenging the
impugned order submitted that the petitioner was falsely implicated in
the departmental enquiry. He submitted that in view of the acquittal in
the criminal case, the order of punishment could not be justified. The
Tribunal ought to have allowed the OA in view of the petitioner's
acquittal.
8. Learned Assistant Government Pleader for the respondent
submitted that in the departmental enquiry, the charge was proved by
the witnesses. Imposition of punishment was justified. The acquittal in
criminal case was giving benefit of doubt and so it shall have no effect
on the punishment in the departmental proceedings. She placed
reliance in State of Rajasthan v. Phool Singh 1.
9. We have considered the aforesaid submissions and perused the
material on record.
10. The first submission is with respect to the false implication of the
petitioner. The enquiry officer has recorded the finding against the
petitioner that he came on motor cycle and snatched the plastic cover
from one Balaraju containing an amount of Rs.40,000/- who was
coming out from Andhra Pragathee Gramina Bank. The finding has
been recorded on consideration of the evidence adduced during the
enquiry. PW1, is the complainant. PW2 is a Police constable who took
the petitioner to custody. PW3 is a Police constable who corroborated
that the petitioner was taken into custody by releasing him from the
public and brought him to the police station. In the enquiry, the
evidence of PW4 - the Inspector of Police, who investigated the case
and supported the evidence of PWs 1 to 3, and seized the cash etc.,
2022 SCC OnLine SC 1140
from the petitioner. The said finding was accepted by the disciplinary
authority after considering the petitioner's reply to the enquiry officer's
report which has also been affirmed in the appeal. The Tribunal has
also recorded that there was no procedural irregularities in conducting
the enquiry and there was no illegality in passing of the order of
punishment. The finding is of fact on proof of charge. We do not find
any illegality in the said finding. Nothing has been brought to our notice
so as to interfere with such finding of fact, in the exercise the writ
jurisdiction of Article 226 of Constitution of India which is very limited.
11. In B.C.Chaturvedi v. Union of India2, the Hon'ble Apex Court
held as under:
"12.Judicial review is not an appeal from a decision but a review of the
manner in which the decision is made. Power of judicial review is meant to
ensure that the individual receives fair treatment and not to ensure that the
conclusion which the authority reaches is necessarily correct in the eye of
the court. When an inquiry is conducted on charges of misconduct by a
public servant, the Court/Tribunal is concerned to determine whether the
inquiry was held by a competent officer or whether the inquiry was held by
a competent officer or whether rules of natural justice are complied with.
Whether the findings or conclusions are based on some evidence, the
authority entrusted with the power to hold inquiry has jurisdiction, power
and authority to reach a finding of fact or conclusion. But that finding must
be based on some evidence. Neither the technical rules of Evidence Act
nor of proof of fact or evidence as defined therein, apply to disciplinary
proceeding. When the authority accepts that evidence and conclusion
receives support therefrom, the disciplinary authority is entitled to hold that
the delinquent officer is guilty of the charge. The Court/Tribunal in its power
of judicial review does not act as appellate authority to reappreciate the
evidence and to arrive at its own independent findings on the evidence. The
Court/Tribunal may interfere where the authority held the proceedings
against the delinquent officer in a manner inconsistent with the rules of
natural justice or in violation of statutory rules prescribing the mode of
inquiry or where the conclusion or finding reached by the disciplinary
authority is based on no evidence. If the conclusion or finding be such as
no reasonable person would have ever reached, the Court/Tribunal may
(1995) 6 SCC 749
interfere with the conclusion or the finding, and mould the relief so as to
make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is
presented, the appellate authority has co- extensive power to reappreciate
the evidence or the nature of punishment. In a disciplinary inquiry, the strict
proof of legal evidence and findings on that evidence are not relevant.
Adequacy of evidence or reliability of evidence cannot be permitted to be
canvassed before the Court/Tribunal. In Union of India v. H.C.Goel [(1964)
4 SCR 781], this Court held at page 728 that if the conclusion, upon
consideration of the evidence reached by the disciplinary authority, is
perverse or suffers from patent error on the face of the record or based on
no evidence at all, a writ of certiorari could be issued.
14. In Union of India v. S.L.Abbas [(1993) 4 SCC 357], when the order of
transfer was interfered by the Tribunal, this Court held that the Tribunal was
not an appellate authority which could substitute its own judgment to that
bona fide order of transfer. The Tribunal could not, in such circumstances,
interfere with orders of transfer of a Government servant. In Administrator
of Dadra & Nagar Haveli v. H.P.Vora [(1993) Supp. 1 SCC 551], it was held
that the Administrative Tribunal was not an appellate authority and it could
not substitute the role of authorities to clear the efficiency bar of a public
servant. Recently, in State Bank of India v. Samarendra Kishore Endow
[(1994) 1 SC 217], a Bench of this Court to which two of us (B.P. Jeevan
Reddy & B.L. Hansaria, JJ.) were members, considered the order of the
Tribunal, which quashed the charges as based on no evidence, went in
detail into the question as to whether the Tribunal had power to appreciate
the evidence while exercising power of judicial review and held that a
Tribunal could not appreciate the evidence and substitute its own
conclusion to that of the disciplinary authority. It would, therefore, be clear
that the Tribunal cannot embark upon appreciation of evidence to substitute
its own findings of fact to that of a disciplinary/appellate authority.
15. It is, therefore, difficult to go into the question whether the appellant was
in possession of property disproportionate to the known source of his
income. The findings of the disciplinary authority and that of Inquiry Officer
are based on evidence collected during the inquiry, They reached the
findings that the appellant was in possession of Rs.30,000/- in excess of his
satisfactorily accounted for assets from his known source of income. The
alleged gifts to his wife as stridhana and to his children on their birthdays
were disbelieved. It is within the exclusive domain of the disciplinary
authority to reach that conclusion. There is evidence in that behalf."
12. So far as the submission regarding acquittal in criminal case is
concerned, it is well settled in law that the departmental proceedings
are different from the criminal proceedings. In Phool Singh (supra),
the Hon'ble Apex Court observed that the fundamental difference
between the two is that whereas in a departmental proceeding a
delinquent employee can be held guilty on the basis of "preponderance
of probabilities", in a criminal court the prosecution has to prove its
case "beyond reasonable doubt". In short, the difference between the
two proceedings would lie in the nature of evidence and the degree of
its scrutiny. The two forums therefore run at different levels. It was
further held that merely because a person has been acquitted in a
criminal trial, he cannot be ipso facto reinstated in service.
13. Para Nos.10 & 17 of Phool Singh (supra) read as under:
"10. There should be no ambiguity in law on this subject. A departmental proceeding is
different from a criminal proceeding. The fundamental difference between the two is
that whereas in a departmental proceeding a delinquent employee can be held guilty
on the basis of "preponderance of probabilities", in a criminal court the prosecution has
to prove its case "beyond reasonable doubt". In short, the difference between the two
proceedings would lie in the nature of evidence and the degree of its scrutiny. The two
forums therefore run at different levels. For this reason, this Court has consistently held
that merely because a person has been acquitted in a criminal trial, he cannot be ipso
facto reinstated in service.
17. In the above case a distinction has also been drawn by this Court between a
"criminal offence" and "misconduct". One has to be proved in a criminal court, the other
in a departmental proceeding, and though both may arise from the same set of facts,
yet there is a clear distinction between the two and merely because one has been
acquitted in a criminal trial, it would not amount to a reversal of the findings of
"misconduct", which were arrived in a departmental proceeding. This Court also
observed that the High Court fell into an error in doing exactly this, which was done by
drawing an 'erroneous inference' from the decision of this Court given in Capt. M. Paul
Anthony. We must therefore, reproduce here the two paragraphs from the judgment of
this Court in Sitaram Mishra v. Union of India {2007 SCC OnLine Cal 718}:-
"14. The fact that the first respondent was acquitted in the course of the criminal
trial cannot operate ipso facto as a ground for vitiating the finding of misconduct
which has been arrived at during the course of the disciplinary proceedings. The
High Court, in our view, has drawn an erroneous inference from the decision of
this Court in M.Paul Anthony v. Bharat Gold Mines Ltd., {(1999) 3 SCC 679 : 1999
SCC (L&S) 810}. The High Court adverted to the following principle of law laid
down in the above judgment: (SCC p. 687, para 13)
"13....While in the departmental proceedings the standard of proof is one of
preponderance of the probabilities, in a criminal case, the charge has to be
proved by the prosecution beyond reasonable doubt. The little exception may
be where the departmental proceedings and the criminal case are based on
the same set of facts and the evidence in both the proceedings is common
without there being a variance."
15. It is undoubtedly correct that the charge in the criminal trial arose from the
death of a co-employee in the course of the incident resulting from the firing of a
bullet which took place from the weapon which was assigned to the first
respondent as a member of the Force. But the charge of misconduct is on the
ground of the negligence of the first respondent in handling his weapon and his
failure to comply with the departmental instructions in regard to the manner in
which the weapon should be handled. Consequently, the acquittal in the criminal
case was not a ground for setting aside the penalty which was imposed in the
course of the disciplinary enquiry. Hence, having regard to the parameters that
govern the exercise of judicial review in disciplinary matters, we are of the view that
the judgment [Sitaram Mishra (supra)] of the Division Bench of the High Court is
unsustainable."
14. In Union of India v. Methu Meda 3 also the Hon'ble Apex Court
has held as under:
"20. In view of the aforesaid, it is clear the respondent who wishes to join the
police force must be a person of utmost rectitude and have impeccable character
and integrity. A person having a criminal antecedents would not be fit in this
category. The employer is having right to consider the nature of acquittal or
decide until he is completely exonerated because even a possibility of his
taking to the life of crimes poses a threat to the discipline of the police force.
The Standing Order, therefore, has entrusted the task of taking decisions in
these matters to the Screening Committee and the decision of the Committee
would be final unless mala fide. In the case of Pradeep Kumar (supra), this Court
has taken the same view, as reiterated in the case of Mehar Singh (supra). The
same view has again been reiterated by this Court in the case of Raj Kumar
(supra).
21. As discussed hereinabove, the law is well settled. If a person is acquitted
giving him the benefit of doubt, from the charge of an offence involving
moral turpitude or because the witnesses turned hostile, it would not
automatically entitle him for the employment, that too in disciplined force.
The employer is having a right to consider his candidature in terms of the
circulars issued by the Screening Committee. The mere disclosure of the
offences alleged and the result of the trial is not sufficient. In the said situation,
the employer cannot be compelled to give appointment to the candidate. Both
the Single Bench and the Division Bench of the High Court have not considered
the said legal position, as discussed above in the orders impugned. Therefore,
the impugned orders passed by the learned Single Judge of the High Court in
Writ Petition No. 3897 of 2013 and Division Bench in Writ Appeal No. 1090 of
2013 are not sustainable in law, as discussed hereinabove."
15. In Kollipara Koteswara Rao v. Inspector General of
Registration and Stamps, A.P.,4the Co-ordinate Bench of this Court
held as under:
"Thus, the law is well settled that the acquittal is to be honourable and
honourable acquittal is when the accused is acquitted after full
(2022) 1 SCC
2023 SCC OnLine AP 1694
consideration of prosecution evidence and the prosecution having
miserably failed to prove the charge."
16. The petitioner was in a disciplined force being a police
constable. He himself indulged in the activity of snatching the plastic
bag containing an amount of Rs.40,000/-.
17. The imposition of the punishment of reduction of time scale of
pay by two stages with effect on future increments and pension and
treating the suspension period as not on duty, has been maintained by
the Tribunal, though we are of the view that a police constable who
indulged in such misconduct & irregularities deserved severe
punishment.
18. Consequently, we do not find any illegality in the order of the
Tribunal.
19. The Writ Petition is devoid of merits and is dismissed.
No order as to costs.
As a sequel thereto, miscellaneous petitions, if any pending,
shall also stand dismissed.
_____________________
RAVI NATH TILHARI, J
__________________
NYAPATHY VIJAY, J
Date: .10.2024
Note: L.R. copy be marked
B/o.
AG
HONOURABLE SRI JUSTICE RAVI NATH TILHARI
HONOURABLE SRI JUSTICE NYAPATHY VIJAY
WRIT PETITION NO.37212 of 2013
Date: .10.2024
Note: L.R. copy be marked
B/o.
AG
