Telangana High Court
Ch. Sudhakar Reddy, vs The State Of Telangana on 14 November, 2022
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P. No. 576 of 2017
Between:
Ch. Sudhakar Reddy
... Petitioner
And
The State of Telangana,
Rep. by its Principal Secretary to Government,
Home Department and others
... Respondents
JUDGMENT PRONOUNCED ON: 14.11.2022
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : yes
3. Whether Their Lordships wish to
see the fair copy of the Judgment? : yes
____________________
SUREPALLI NANDA, J
WP_576_2017
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THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 576 of 2017
% 14.11.2022
Between:
# Ch. Sudhakar Reddy
..... Petitioner
and
$ The State of Telangana,
Rep. by its Principal Secretary to Government,
Home Department and others
.....Respondents
< Gist:
> Head Note:
! Counsel for the Petitioner : Mr V.Ravichandran
^Counsel for the Respondents: G.P. for Home
? Cases Referred:
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THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 576 of 2017
ORDER:
Heard learned counsel for the petitioner and learned
Government Pleader for Home.
2. This Court vide its order dated 28.04.2022 was pleased
to order W.P.M.P.No.28660 of 2017 in W.P.No.576 of 2017.
As per the amended prayer, the prayer of the petitioner in the
present writ petition is as follows:
"to issue an appropriate writ, order or direction, more
particularly one in the nature of a Writ of Mandamus
declaring the action of the 2nd and 3rd respondents in treating
the out of employment period from 10.09.2013 to till date as
Extra Ordinary Leave and thereafter, as not on duty vide
impugned proceedings issued in D.O.No.4898 (No.L&O/B8/
1432/2001) dated 07.05.2016, Rc.No.148/T2/2016, dated
16.10.2016 and D.O.No.13020 dated 31.12.2016 though the
order of removal was set aside by the A.P. Administrative
Tribunal, Hyderabad with a direction to extend all
consequential benefits and confirmed by this Court in
W.P.No.22451 of 2014 dated 07.01.2016 and further denying
increments which fell due from 2014 onwards and promotion,
as being arbitrary, illegal, unjustified and in violation of
Articles 14 and 16 of the Constitution of India and
consequently hold that the petitioner is entitled to have the
out of employment period regularized as on duty for all
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purposes including arrears of pay and allowances,
increments, promotion on par with his juniors etc."
3) The case of the petitioner, in brief, is as follows:
a) The petitioner while working as Police Constable at
Bollaram P.S., he was dismissed from service vide orders
dated 07.07.2001 invoking the provisions of Article 311(2) of
the Constitution of India citing involvement in Crime No.288
of 2001 and Crime No.440 of 2001.
b) The same was set aside by the Tribunal by an order
dated 30.11.2001 giving liberty to take disciplinary action in
accordance with law and accordingly, the petitioner was
reinstated into duty on 16.02.2002. Subsequently, the
petitioner was acquitted in both the criminal cases on
16.10.2003 and 29.09.2004 respectively.
c) In respect of the very same incidents, disciplinary
proceedings were initiated against the petitioner vide charge
memo dated 20.05.2008 and the same was culminated in the
imposition of the penalty of removal vide proceedings dated
10.09.2013 issued by the 3rd respondent and the appeal
preferred was rejected vide proceedings dated 14.12.2013 by
the 2nd respondent.
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d) Aggrieved by the same, the petitioner has instituted
O.A.No.6990 of 2013 before the Tribunal and the said O.A.
was allowed vide order dated 18.03.2014 duly setting aside
the order of removal with a further direction to the
respondents to reinstate the petitioner in to service with all
consequential benefits.
e) As the respondents were not implementing the said
O.A. order, the petitioner filed Contempt Application.
Subsequent to filing of the said Contempt Application, the
respondents filed W.P.No.22451 of 2014. In the said writ
petition, the High Court granted interim order on 17.11.2014.
The said writ petition was dismissed on 07.01.2016 affirming
the order passed by the Tribunal.
f) The petitioner was reinstated into service on
07.05.2016. The suspension period from 07.07.2001 to
19.02.2013 was treated on duty, but out of employment
period from 10.09.2013 to 07.05.2013 has been treated as
'Extra Ordinary Leave". Hence, this writ petition.
4. The respondents filed counter, in brief, is as
follows:
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a) In obedience of the orders of the Tribunal and the High
Court, the petitioner was reinstated into service with all
consequential benefits treating the out of employment as
'extra ordinary leave', but not as 'not on duty', since they did
not do duty as contended by the petitioner.
b) The delay of 4 months to reinstate the petitioner is
purely an administrative delay occurred during the official
correspondence and the respondent cannot be held
responsible for the same.
c) The petitioner submitted a representation on
12.07.2016 to the 2nd respondent to treat the period of out of
employment as 'on duty'.
d) There is an opportunity provided to every Government
Servant under Rule 40 of Andhra Pradesh Civil Services
(Classification, Control and Appeal) Rules, 1991 to prefer a
revision petition against any order of the disciplinary authority
and appellate authority. But instead of availing this
opportunity and without following the procedure prescribed
Rule 40 of the said Rules, the petitioner has invoked the
jurisdiction of the High Court. Therefore, the writ petition is
liable to be dismissed.
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5. The main contentions put-forth by the Counsel for
the Petitioner are as under:
a) That while the Petitioner was working at Bolaram
Police Station the Petitioner was falsely implicated in
Crime No.288 of 2001 under Sections 419, 420 and 395
IPC and Crime No.440 of 2001 under Section 392 IPC of
S.R.Nagar Police Station for which the Petitioner was
placed under suspension.
b) That the Metropolitan Session's Court gave the
petitioner a clean acquittal in both the cases, later
departmental proceedings were initiated against the
petitioner and the Inquiring Authority conducted the
inquiry and held the charge as proved. The Disciplinary
Authority agreed with the findings of the Inquiry
Authority and submitted the copy of the Inquiry report
to the petitioner and the petitioner submitted a detailed
representation and not satisfied with the petitioner's
representation the Disciplinary Authority issued orders
vide D.O. No.5779 (L&O/B8/NZ/2001-13) dated 10.09.2013
of the Commissioner of Police, Hyderabad) for Petitioner's
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removal from service treating the period of suspension
of the Petitioner from 07.07.2001 to 19.02.2002 as Not
on Duty. That the petitioner's appeal petition was also
rejected by the Appellate Authority.
c) That the petitioner filed O.A.No.6990/2013 on the
file of A.P.A.T., and the APAT vide its common order
dated 18.03.2014 had set aside the punishment of
removal from service.
d) That the Department had filed W.P.No.22451 of
2014 before the High Court against the order dated
18.03.2014 issued by the APAT. The High Court in its
common order dated 07.01.2016 observed that there
was no reason to interfere with the common order of
the Tribunal and the same is confirmed and the Writ
Petitions are devoid of any merit and the same are
dismissed.
e) That the Commissioner of Police, Hyderabad vide
D.O.No.4898 (L&O/B8/1432/2001, dated 07.05.2016)
had issued orders for Petitioner's reinstatement into
service duly directing that the period of out of
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employment from 10.09.2013 to till date i.e.,
07.05.2016 be treated as Extra Ordinary Leave.
f) That for no fault of the Petitioner, the Petitioner
was out of employment from 10.09.2013 to 07.05.2016
and both the APAT and High Court directed for
Petitioner's reinstatement into service with all
consequential benefits and therefore the Petitioner is
entitled for a direction directing the Respondents for
treating the period out of employment also as on duty
and to issue appropriate orders releasing all
consequential benefits to the Petitioner.
g) That in respect of one Sri K.Ramesh Goud, Sub-
Inspector of Police, and Sri K.Peethamber Babu, PC 7934
formerly at Kachiguda Police Station, Hyderabad for
regularization of suspension and dismissal period as on duty,
orders had been issued in their favour by the Government but
however curiously in respect of the Petitioner the request to
treat the period of out of employment of the Petitioner and
another from 10.09.2013 was rejected illegally.
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h) That the Petitioner was not issued any notice prior to
the impugned order nor the impugned order indicates any
reasons.
i) That as per Fundamental Rule 54-A Sub-Rule 3 the
Petitioner is entitled for relief as prayed for in the Writ
Petition.
6. The main contentions put-forth by the Counsel for
the Respondents are as under:
a) That the Director General of Police, Telangana
vide Memorandum R.C.No.148/T2/2016, dated
26.10.2016 had informed that "to treat the period of
suspension in respect of S/Sri Uday Sekhar, P.C. 3440
w.e.f., 07.07.2001 to 18.02.2002, Ch. Sudhakar Reddy,
w.e.f., 07.07.2001 to 19.02.2002 and B.Suresh Kumar,
PC 7934 w.e.f, from 07.07.2001 to 04.07.2002 and the
period out of employment from 10.09.2013 to
07.05.2016 of above 3 PCs as not on duty as per the
provisions of F.R. 54(5) and the same was informed to
the Petitioner.
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b) That there is an opportunity provided to every
Government servant under Rule 40 of Andhra Pradesh
Civil Services (Classification, Control and Appeal) Rules
1991 to prefer a Revision Petition against any order of
the Disciplinary Authority and the Appellate Authority.
But the Petitioner instead of availing of the said
opportunity and without following the procedure
prescribed under the Rule 40 of Andhra Pradesh Civil
Services (Classification, Control & Appeal) Rules 1991
the Petitioner has invoked the jurisdiction of the High
Court.
c) Placing reliance and referring to paras 20 and 21
of the Order dated 18.03.2014 passed in
O.A.No.6990/2013 and O.A.No.6991/2013 the learned
Counsel for the Respondents contends that the order
passed in favour of the Petitioner is not on merits and
hence therefore the Petitioner's plea that Fundamental
Rule 54-A Sub-Rule 3 applies is false and incorrect and
therefore Fundamental Rule 54(5) applies to the facts
of the present case and the Writ Petition has to be
dismissed in limini.
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7. In consequence to the main impugned
proceedings dated 07.05.2016 the consequential
proceedings impugned in the present writ petition are
dated 26.10.2016 and 31.12.2016. In so far as the
impugned proceedings Rc.No.148/T2/2016, dated
26.10.2016 of the office of the Director General of
Police, Telangana, Hyderabad reads as under:
"The attention of Commissioner of Police, Hyderabad is
invited to the references cited and he is informed to
treat the period of suspension in r/o S/Sri Uday
Shekar, PC 3440 wef 7.7.2001 to 18.2.2002,
Ch.Sudhakar Reddy wef 7.7.2001 to 19.2.2002 and
B.Suresh Kumar, PC 7934 wef 7.7.2001 to 4.7.2002
and the period of out of employment from 10.9.2013 to
7.5.2016 of above (3) PCs is treated as 'Not on Duty'
as per the provisions of FR 54(5).
He is therefore requested to inform the
petitioners accordingly under intimation to Chief
Office."
8. In so far as impugned proceedings D.O.No.13020,
(L&O/B8/1432/2001, dated 31.12.2016, it is the
consequential proceedings issued by the Commissioner
of Police, Hyderabad City referring to the proceedings
dated 26.10.2016 in Rc.No.148/T2/2016, extracted
WP_576_2017
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above, whereunder the D.G.P., Telangana informed to
'treat the period of suspension of the petitioner herein
i.e. Sri Ch.Sudhakar Reddy, PC 7880 w.e.f. 07.07.2001
to 19.02.2002 and the period out of employment from
10.09.2013 to 07.05.2016 as 'not on duty' as per the
provisions of FR 54(5) and requested to inform the
petitioner accordingly under intimation to C.O.
PERUSED THE RECORD :
9. The Common Order dated 18.03.2014 passed in
O.S.No.6990/2013 and O.A.No.6991/2013 paras 20,
21, 24, 25 and 26 are as under:
Para 20. Similarly, in another judgment of the Hon'ble
Supreme Court in Sher Bahadur Vs. Union of India and
Others, reported in (2002) 7 SCC 142, their Lordships have
held that the misconduct of the delinquent official has to be
linked to the charge.
Para 21. In the present case, the charge is based on the
alleged confessional statement of the applicants. But the
enquiry officer endeavoured to link the misconduct of the
applicants with the confessional statements of the other
Accused (A1 & 2) and not the applicants. The Accused 1 & 2
were not included in the list of witnesses also and thus there
was no opportunity to the applicants to cross examine them
during the enquiry and thus the procedure adopted was not
in accordance with the principles of natural justice. Thus,
there is not an iota of doubt left that the finding of the
applicant is beyond the scope of the charge and the alleged
misconduct is not linked to the charge. There must be fair
play in action particularly when charges involve
consequences of termination of service which now-a-days
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means loss of livelihood. It is clearly a case of finding the
applicants guilty of the charge without any evidence to link
them with the alleged misconduct as stated in the charge
leveled against them. Therefore, the order of the disciplinary
authority under challenge cannot be sustained.
Para 24. In view of the above facts and circumstances
obtaining in the two O.As., the impugned orders bearing
D.O.No.5779 (L&O/BB/NZ/ 1432/2001-13) dated 10.09.2013
issued by the 3rd Respondent and the impugned order issued
by the 2nd Respondent vide D.Dis.No. 2829/Appeal.2/2013,
dated 14.12.2013 are held to be bad in law. The point is
answered accordingly.
Para 25. Point-11: For the reasons recorded above, the
imposition of the punishment of removal from service
deserves to be set aside and they deserve to be reinstated
into service with all consequential benefits.
Para 26. Accordingly, the O.A's are allowed and the
impugned orders bearing D.O.No.5779 (L&O/B8/NZ/
1432/2001-13) dated 10.09.2013 issued by the 3rd
Respondent and the impugned order issued by the 2nd
Respondent vide D.Dis.No.2829/Appeal.2/2013 dated
14.12.2013 are set aside. Respondents are directed to
reinstate the applicants into service forthwith with all
consequential benefits. No order to the costs.
10. In the order dated 07.01.2016 in W.P.Nos.20416
and 22451 of 2014 at paras 11, 12 & 13, it is observed
as follows :
Para 11 : The Tribunal based on evidence has
categorically found that the findings of the enquiry officer
that the respondents made confession is factually incorrect
and he recorded his findings based on the confessional
statements of other accused A-1 and A-2 in the criminal
case. Therefore, as rightly found by the Tribunal, the
respondents were found guilty on non-existing ground. A
Division Bench of this Court in K. Balram Raju vs. High Court
of A.P. (5 supra), held as under :
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"47. This Court in the normal circumstances would
not have interfered with the findings of the fact recorded at
the domestic enquiry, even if there is some evidence on
record which is acceptable and which could be relied,
however compendious it may be. The findings would be of
two kinds, basic and ultimate. The ultimate findings could be
reached only on the basic facts. If the basic facts does not
exist or is not accepted, there cannot be an ultimate
finding."
Para 12. Therefore, without the respondents making
confessions, holding them guilty, as held by this court in the
above judgment, would amount to reaching ultimate findings
without basic facts.
Para 13 : In view of the above facts and circumstances,
the Tribunal rightly set aside the punishment of removal from
service imposed on the respondents and directed for their
reinstatement with all consequential benefits. We do not find
any reason to interfere with the impugned common order of
the Tribunal and the same is confirmed. The issue framed is
accordingly answered. The writ petitions are devoid of any
merit and the same are dismissed. No costs.
11. Fundamental Rule 54-A Sub-Rule 3 reads as
under:
"54-A(3): If the dismissal, removal or compulsory
retirement of a Government servant is set aside by the court
on the merits of the case, the period intervening between the
date of dismissal, removal or compulsory retirement
including the period of suspension preceding such dismissal,
removal or compulsory retirement, as the case may be, and
the date of reinstatement shall be treated as (duty for all
purposes and the shall be paid the full pay and allowances
for the period, to which he would have been entitled, had he
not been dismissed, removed or compulsorily retired or
suspended prior to such dismissal, removal or compulsory
retirement as the case may be."
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DISCUSSION & CONCLUSION :
12. A bare perusal of the order impugned clearly
indicates that the 3rd respondent herein did not apply
Fundamental Rule 54-A Sub-Rule (3) and instead
applied 54(5) Fundamental Rule to the facts of the
present case which is in fact unwarranted and uncalled
for.
13. The plea of the Counsel for the Respondent that
the orders dated 18.03.2014 passed in
O.A.No.6990/2013 is an order which is not passed on
merits cannot be accepted in view of the observations
of the Court in paras 20, 21, 24, 25 and 26 of the said
order, referred to and extracted above, since a bare
perusal of the said observations clearly indicates that it
is an order passed on merits and hence the plea of the
learned counsel for the respondent that Fundamental
Rule 54(5) applies is not tenable and cannot be
accepted. A bare perusal of the order of Division Bench
of High Court dt. 07.01.2016 passed in W.P.Nos.20416
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& 22451 of 2016, confirming the orders dated
18.03.2014 passed in O.A.No.6990/2013 and
O.A.No.6991/ 2013 and the relevant paras 11, 12 and
13 of the said judgment referred to and extracted
above clearly indicates that the order of the High Court
issued in favour of the Petitioners is also a detailed
order passed on merits.
14. The plea of the Counsel for the Respondent that
the Petitioner has a remedy of revision cannot be
accepted in view of the simple fact that it is not a
mandatory remedy.
15. In view of the fact that Fundamental Rule 54-A(3)
clearly stipulates that if the dismissal, removal or
compulsory retirement of a Government servant is set
aside by the Court on merits of the case, the period
intervening between the date of dismissal, removal or
compulsory retirement including the period of
suspension preceding such dismissal, removal or
compulsory retirement, as the case may be, and the
date of reinstatement shall be treated as (duty for all
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purposes and the shall be paid the full pay and
allowances for the period, to which he would have been
entitled, had he not been dismissed, removed or
compulsorily retired or suspended prior to such
dismissal, removal or compulsory retirement as the
case may be, and in the present case as borne on
record the orders passed in favour of the Petitioner
setting aside the punishment of removal is an order
passed on merits of the case by the APAT and also the
same being confirmed by the High Court based on its
merits, this Court is of the firm opinion that the
Petitioner is entitled for the relief as prayed for.
16. Further this Court also takes note of the fact that
there is no justification in the action of the
Respondents in granting relief as prayed for in the
present Writ Petition under similar circumstances to
other similarly situated persons like the Petitioner and
denying the same to the Petitioner without assigning
any reasons and the same amounts to clear
discrimination and the same is in clear violation of the
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Article 14 of the Constitution of India (Memo
No.86/Spl/A1/2021-3, dated 09.12.2021).
17. Taking into consideration all the above referred
circumstances and the fact that the order impugned in
D.O. No.4898 (N0.L&O/B8/1432/2001) dated
07.05.2016 is passed without assigning any reasons
and the plea taken in the counter affidavit that the
period of suspension in respect of the Petitioner w.e.f.
07.07.2001 to 19.02.2002 that is the period out of
employment as "not on duty" is as per the provisions of
F.R. 54(5), cannot be sustainable in view of the simple
fact that the orders passed in favour of the Petitioner
both by the APAT and also by the High Court (referred
to and extracted above) are clear orders passed on
merits, this Court opines that F.R. 54(5) has no
application at all to the facts of the present case and
the Petitioner's case squarely falls under F.R. 54-A(3).
18. In view of the fact that the impugned order dated
07.05.2016 issued in D.O.No.4898 (No.L&O/B8/NZ/
1432/2001 of the Commissioner of Police, Hyderabad
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cannot be held to be legal and cannot be sustained in
the eye of law, therefore, the consequential
proceedings in Rc.No.148/T2/2016, dated 26.10.2016
of the Director General of Police, Telangana, Hyderabad
and the D.O.No.13020, dated (L&O/B8/1432/2001,
dated 31.12.2016 of the Commissioner of Police,
Hyderabad City also cannot be sustained and
accordingly, the writ petition is allowed setting aide the
order impugned issued in D.O. No.4898
(N0.L&O/B8/1432/2001) dated 07.05.2016 in so far as
treating the out of employment period of the petitioner
from 10.09.2013 to 07.05.2016 as Extra Ordinary Leave
as being arbitrary, illegal, contrary to the provisions of
Fundamental Rule 54-A(3) and the consequential
proceedings in Rc.No.148/T2/2016, dated 26.10.2016
of the Director General of Police, Telangana, Hyderabad
and the D.O.No.13020, dated (L&O/B8/1432/2001,
dated 31.12.2016 of the Commissioner of Police,
Hyderabad city are also set aside. The respondents are
further directed to regularize the out of employment
period of the petitioner from 10.09.2013 to 07.05.2016,
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as on duty, for all purposes including arrears of pay and
allowances, increments and promotion on par with the
juniors of the petitioner within a period of one month
from the date of receipt of the copy of the order.
Miscellaneous petitions, if any, pending shall stand
closed.
_________________
SUREPALLI NANDA, J
Date: 14.11.2022
Note : L.R. copy to be marked
b/o
kvrm
