K. Uday Shekar, vs The State Of Telangana Rep. By Its ...
2022 Latest Caselaw 5803 Tel

 IN THE HIGH COURT OF TELANGANA AT HYDERABAD

                  W.P. No. 573 of 2017
Between:
K.Uday Shekhar
                                                 ... 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_573_2017
                              2                                     SN,J




     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                    W.P. No. 573 of 2017
% 14.11.2022

Between:

# K.Uday Shekhar
                                                   ..... 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:
                                                                             WP_573_2017
                                       3                                           SN,J




     THE HON'BLE MRS JUSTICE SUREPALLI NANDA

                       W.P. No. 573 of 2017
ORDER:

Heard learned counsel for the petitioner and learned

Government Pleader for Revenue.

2. This Court vide its order dated 28.04.2022 was pleased

to order W.P.M.P.No.28578 of 2017 in W.P.No.573 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 WP_573_2017 4 SN,J

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

Chilkalguda 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.6991 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.20416 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

18.02.2002 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.

                                                                  WP_573_2017
                                6                                       SN,J

4. The respondents filed counter, in brief, is as

follows:

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 WP_573_2017 7 SN,J

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.

5. The main contentions put-forth by the counsel for

the petitioner are as under:

a) That while the Petitioner was working at

Chilakalaguda Police Station the Petitioner was falsely

implicated in Crime No.288/2001 U/s. 419, 420 and

S.R.Nagar Police Station for which the Petitioner was

placed under suspension.

b) That the Metropolitan Sessions Judge'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 WP_573_2017 8 SN,J

representation, the Disciplinary Authority issued orders

vide D.O. No.5779 (No.L&O/B8/1432/2001-13, dated

10.09.2013 of Commissioner of Police, Hyderabad) for

petitioner's removal from service treating the period of

suspension of the petitioner PC 3440 from 07.07.2001

to 18.02.2002 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.6991/2013 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.20416 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.

                                                              WP_573_2017
                              9                                     SN,J




e)    That the Commissioner of Police, Hyderabad vide

D.O. No.4898 (No.L&O/B8/1432/2001, dt. 07.05.2016

had issued orders for the petitioner's reinstatement

into service duly directing that the period of out of

employment from 10.09.2013 to till date 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 Tribunal and the 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 WP_573_2017 10 SN,J

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.

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, dt.

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 WP_573_2017 11 SN,J

provisions of F.R. 54(5) and the same was informed to

the Petitioner.

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 Common Order dt. 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 WP_573_2017 12 SN,J

therefore Fundamental Rule 54(5) applies to the facts

of the present case and the Writ Petition has to be

dismissed in limini.

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 that 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 WP_573_2017 13 SN,J

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

above, whereunder the D.G.P., Telangana informed to

'treat the period of suspension of the petitioner herein

i.e. Sri Uday Shekar, PC 3440 w.e.f. 07.07.2001 to

18.02.2002 and the period out of employment from

10.09.2013 to 07.05.2016 is treated 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 WP_573_2017 14 SN,J

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 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 WP_573_2017 15 SN,J

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 :

"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."

WP_573_2017 16 SN,J

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.6991 of

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 dated

07.01.2016 passed in W.P.Nos.20416 & 22451/2016,

confirming the orders dated 18.03.2014 passed in WP_573_2017 17 SN,J

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

purposes and the shall be paid the full pay and

allowances for the period, to which he would have been WP_573_2017 18 SN,J

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, therefore, 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 Article 14 of the

Constitution of India (Memo No.86/Spl/A1/2021-3,

dated 09.12.2021).

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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 by the Respondents that the period

out of employment of the petitioner from 10.09.2013 to

07.05.2016 is treated as Extra Ordinary Leave 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 by the Tribunal 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 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, WP_573_2017 20 SN,J

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 aside 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, as on duty,

for all purposes including arrears of pay and

allowances, increments and promotion on par with the WP_573_2017 21 SN,J

juniors of the petitioner within a period of one month

from the date of receipt of the copy of the order.

There shall be no order as to costs.

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