B.Venkata Subbaiah vs The Superintendent Of Police
2024 Latest Caselaw 8996 AP

Andhra Pradesh High Court - Amravati

B.Venkata Subbaiah vs The Superintendent Of Police on 27 September, 2024

                                                 1

 APHC010018242022
                        IN THE HIGH COURT OF ANDHRA PRADESH
                                      AT AMARAVATI                                          [3310]
                               (Special Original Jurisdiction)

           FRIDAY ,THE TWENTY SEVENTH DAY OF SEPTEMBER
                   TWO THOUSAND AND TWENTY FOUR

                                           PRESENT

            THE HONOURABLE DR JUSTICE K MANMADHA RAO

                            WRIT PETITION NO: 1344/2022

Between:

B.venkata Subbaiah                                                               ...PETITIONER

                                               AND

The Superintendent Of Police and Others                                   ...RESPONDENT(S)

Counsel for the Petitioner:

   1. C SRINIVASA BABA

Counsel for the Respondent(S):

   1. GP FOR SERVICES I

The Court made the following:

ORDER :

This writ petition is filed under Article 226 of the Constitution of India, for

the following relief:

"....... to issue a writ order or direction more in the nature of Writ of Mandamus and to declaring the impugned the proceedings D O No 828/2021, Rc No 18022/A6/2021, Dated st 09.08.2021 on the file of the 1 respondent in dismissing the petitioner from the service as police constable, as illegal, arbitrary, stigmatic punitive in nature and against principles of natural justice and also in violation of conduct Rules of APCS (CCA) Rules 1991 and accordingly set aside the same and consequently direct the respondents to reinstate the petitioner in to service along with consequential benefits and to pass......"

2. The grievance of the petitioner is that he was appointed as police

constable on 04.11.2009 and his probation was declared on 04.11.2011. Be

that as it may, the Nandyal II Town police station was registered a false case

against the petitioner under section 302 R/w 34 IPC & Sec 3 (2)(v) of SC/ST

(POA) Amendment Act-2015 and accordingly registered a case vide FIR

No.434/2021 Dated09.08.2021 on the allegation that he and his brother

namely Nani killed one SirangiKeshava, who was a TV5 TV reporter. Due to

the said allegation, the petitioner was arrested by the police and remanded for

jail and he was enlarged on bail. While the matter stood thus, due to

involvement in the criminal case, the petitioner was placed under suspension

on 04.08.2021 pending disciplinary proceedings contemplated under the

conduct Rules. Surprisingly, without there being any enquiry, which is

mandate as per Rules 20 & 21 of APCS (CC&A) RULES 1991 imposed major

punishment of Dismissal from service vide D.O.No.828/2021

Rc.No.18022/A6/2021 Dated 09.08.2021, which is highly illegal and arbitrary.

Hence, the present writ petition.

3. Counter affidavit has been filed by the respondents. While denying

the allegations made in the petition, inter alia, contended that, Sri B.Venkata

Subbaiah, PC 369, the petitioner herein has exhibited reprehensible conduct

of a seasoned criminal and not that of a member of disciplined force vested

with responsibility to protect rights given to the individuals by the Constitution

of India. It is clearly felt that conducting a regular departmental enquiry against

him can result in other members of the force feel that they can interfere with

right of freedom of speech of individuals and interfere with a free media which

is a pillar of democracy. There is every possibility of him misusing his position

as a member of force to pose a threat to the witnesses as well as family of the

deceased reporter. It is further stated that, the Superintendent of Police,

Kurnool convinced and satisfied that it is not reasonably practicable to hold a

regular enquiry against Sri B. Venkata Subbaiah, PC 369 of Nandyal II town

PS petitioner herein. Therefore, order is being passed against him under the

provisions of Sub Clause (b) of Article 311 (2) of the Constitution of India. In

view of the reasons recorded above and the circumstances prevailing, as per

the provisions of Sub Clause (b) of Article 311(2) of the Constitution of India

and Rule 25 (ii) of APCS (CC&A) Rules, 1991, Sri B. VenkataSubbaiah,

Ex.PC369 petitioner herein was dismissed from service with immediate effect

vide proceedings Rc. No. 18022/A6/2021 (DO.No.828/2021), dated

09.08.2021.

4. Heard Sri C.Srinivasa Baba, learned counsel representing Sri

S.Harinath Reddy, learned counsel appearing for the petitioner and learned

Assistant Government Pleader for Services-I appearing for the respondents.

5. On hearing, Sri C.Srinivasa Baba, learned counsel appearing for the

petitioner while reiterating the averments made in the petition, contended that,

the impugned order was issued on the pressure of press and TV reporters

because the deceased person was a reporter in V5 TV. While passing the

impugned orders, the disciplinary authority has to apply its mind

independently, but not on any pressures. He further submits that the

petitioner was removed from service without there being any regular

departmental enquiry, if the petitioner acquitted honorably from the said

criminal case, the authorities shall have to reinstate the petitioner into service

along with all back wages though he is not performed his duties. Therefore

learned counsel submits that due to dismissal from the service of the

petitioner, he could not get any employment in Government or in private

sector and hence without proving the allegations pending against the

petitioner, he cannot be necked out from the society basing on the allegations.

6. To support his contentions, learned counsel for the petitioner has

relied upon a judgment in V.P Ahuja vs State of Punjab and others 1 ,

wherein the appellant was probationer and he was terminated without an

enquiry or opportunity. The said case was allowed in favour of the appellant

and termination orders were declared as stigmatic and punitive in nature. In

the present case, the petitioner is regular employee and his post is governed

by the rules. Hence, without any enquiry and without finalization of criminal

case, he could not be dismissed from the services, if so, such order is

stigmatic and punitive in nature.

7. Per contra, learned Assistant Government Pleader while denying the

allegations made in the petition reiterated the contents made in the counter.

She submits that as per APCS (CC&A) Rules, 1991, there is a provision for

appeal under Rule 33 and revision under Rule 40 of APCS CC&A) Rules,

1991 against the orders of Disciplinary Authority and said channels are not

2000 SCC 239

exhausted. But in this case, the petitioner has submitted appeal petition to

DIG of Police Kurnool Range, Kurnool and before its disposal, the petitioner

directly approached this Court. The appeal petition of the petitioner is under

examination. She further submits that there is a clear misconduct on the part

of the petitioner and there is discrete enquiry conduced against his

misconduct and it is categorically proved his guilty. Apart from that, this

nature of conduct cannot be permitted to continue in the disciplined force. In

view of the above, learned Assistant Government Pleader prayed to dismiss

the writ petition.

8. In Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai

and others 2 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 atleast 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).

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

The instant case falls in one of the exceptions carved out by the Apex

Court, the principles of natural justice is a casualty here.

9. Having regard to the facts and circumstances of the case and on

perusing the material available on record, without touching the merits of the

case, this Court is inclined to dispose of the writ petition by setting aside the

impugned order in this writ petition and also inclined to remand back the

matter to the respondent authorities concerned for proper appreciation.

10. Accordingly, the impugned proceedings in D.O.No.828/2021, Rc

No 18022/A6/2021, Dated 09.08.2021 issued by the 1st respondent are

hereby set aside and directing the 1st respondent to reinstate the petitioner

into service. Further, the matter is remanded back to the 1st respondent with a

direction to conduct fresh enquiry and pass appropriate reasoned order in

accordance with law, within a period of three (03) months from the date of

receipt of a copy of this order.

11. With the above observation, the Writ Petition is disposed of. No

costs. As a sequel, all the pending miscellaneous applications shall stand

closed.

______________________________

DR. K. MANMADHA RAO, J.

Date :     -09-2024

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      HON'BLE DR. JUSTICE K. MANMADHA RAO




         WRIT PETITION No:1344/2022




                   Date :   27.09.2024




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