Md Zikria vs The State Of Telangna
2023 Latest Caselaw 2736 Tel

       HON'BLE SMT. JUSTICE JUVVADI SRIDEVI

               WRIT PETITION No.4883 of 2019
ORDER :

Petitioner is aggrieved of the action of respondents in

imposing the punishment of withholding 20% pension for a period

of five years and in treating the suspension period from 13.10.1988

to 14.11.1992 and out of employment period from 15.11.1992 to

31.12.2013 as 'not on duty'.

2. Heard Sri C. Sai Reddy, learned counsel for petitioner and

the learned Assistant Government Pleader for Home, appearing for

respondents.

3. When the petitioner was working as a Head Constable and

was Station House Officer of Nellikuduru Police Station of

Warangal District, a criminal case was registered against him and

also departmental proceedings were initiated on the ground that he

committed rape on one Guguloth Sathi in the quarters at the Police

Station premises. He was placed under suspension with effect

from 13.10.1988. Though he was acquitted in the criminal case, on

the ground that the charge levelled against him was proved in the

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departmental proceedings, he was dismissed from service on

11.11.1992. His appeal was also dismissed by order dated

30.12.1993.

4. Being aggrieved of the punishment of dismissal from

service, the petitioner had filed O.A.No.6009 of 1994 before the

A.P. Administrative Tribunal. The said OA was disposed of by

order dated 19.08.2003, setting aside the order of dismissal and

granting liberty to the authorities to hold a fresh inquiry under Pre-

1990-1991 A.P. Civil Services (CCA) Rules. But the respondents,

without following the directions of the Tribunal, have preferred

W.P.No.7108 of 2004 against the orders of Tribunal and obtained

interim suspension orders. Ultimately, the said writ petition was

dismissed for default on 19.04.2011 and thus, the orders of

Tribunal in O.A.No.6009 of 1994 setting aside the dismissal

orders, have become final. Case of the petitioner is that in view of

dismissal of the writ petition filed by the respondents, he was to be

reinstated into service treating the out of employment period as 'on

duty'. However, without reinstating the petitioner into service

inspite of his representation dated 14.11.2003, the respondents

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have initiated fresh inquiry on the date of his attaining the age of

superannuation i.e. 31.12.2013, without passing any orders for his

retirement.

5. It is the further case of the petitioner that after his retirement,

the 2nd respondent by Memo dated 19.07.2014, directed the 3rd

respondent to implement the orders of the Tribunal in

O.A.No.6009 of 1994. The case of the petitioner is that the

respondents ought to have implemented the orders of Tribunal

prior to his attaining the age of superannuation and they ought to

have initiated the fresh inquiry before his superannuation.

However, the 3rd respondent, after one year from the date of

petitioner's superannuation, has issued Memorandum dated

03.12.2014 appointing the Inquiry Officer and Presiding Officer to

conduct fresh inquiry against the petitioner.

6. Vide Memo dated 27.01.2015, the inquiry officer has framed

two charges against the petitioner i.e. (i) abuse of official position

in instructing Guguloth Sathi to bring wanted persons to the Police

Station; and (ii) gross misconduct in calling Guguloth Sathi to

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Police quarters on 12.10.1988 and committing rape on her. It is

stated that the 2nd charge was the subject matter of criminal case,

which ended in acquittal on merits. Therefore, the department has

no jurisdiction to conduct fresh inquiry framing charges for the

reason that after attaining the age of superannuation, Government

alone is competent authority to issue articles of charge and conduct

the inquiry as per the Revised Pension Rules, 1980. However, the

inquiry officer conducted the inquiry by examining seven

witnesses and submitted inquiry report on 02.11.2015 holding that

the charges are not proved. Thereafter, the 1st respondent issued

dissenting note, disagreeing with the findings of the inquiry officer,

though there is no evidence for such disagreement. Petitioner has

submitted his detailed explanation to the said dissent note and

requested to drop the charges, but the 3rd respondent, without

considering the contents of his explanation dated 11.01.2016, sent

the record to the 1st respondent for passing final orders. The 1st

respondent also, without examining the depositions of the

witnesses, judgment of the criminal Court, analysis and findings of

the inquiry officer, reasons for disagreement in the dissenting note

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and contents of petitioner's explanation, issued show cause notice

in Memo dated 01.05.2017 proposing the punishment of cut in

pension by 20% for a period of five years. In the said show cause

notice, there is no whisper as to how to treat the suspension and out

of employment periods. Petitioner has submitted his explanation to

the said show cause notice on 29.05.2017. However, without

considering his explanation, the 1st respondent has passed final

orders imposing the punishment of withholding 20% pension for a

period of five years, vide G.O.Ms.No.116, dated 04.10.2017 and a

further Memo dated 18.08.2018 was issued treating the suspension

period from 13.10.1988 to 14.11.1992 and out of employment

period from 15.11.1992 to 31.12.2013 as 'not on duty', invoking

F.R.No.54(B)(7). Accordingly, he prayed to set aside the said

orders and grant consequential benefits treating the suspension

period and out of employment period as 'on duty'.

7. Counter affidavit is filed by the 3rd respondent stating that on

11.10.1988, while the petitioner was working at Nellikudur Police

Station, he received a complaint from one Guguloth Redya to take

action against some persons for abusing him. The petitioner along

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with a Constable, visited Nallagutta thanda in search of those

persons. As the said persons were not found, the petitioner

instructed one Guguloth Sathi and Guguloth Chandru to bring the

wanted persons to the Police Station on the next day. On the next

day i.e. on 12.10.1988 in the afternoon, the said Guguloth Sathi

along with her brother Guguloth Veeranna went to Nellikudur

Police Station and informed to the petitioner that the wanted

persons were not available in the Thanda. On that, the petitioner

instructed Guguloth Veeranna to go back to his village to bring

wanted persons leaving Guguloth Sathi at Nellikudur Police

Station. At about 2.00 p.m., the petitioner asked Sathi to follow

him to his quarters in the Police Station premises, bolted the doors

and committed rape on her by frightening her that he will implicate

her husband in a false case. A case in Crime No.62 of 1988 was

registered against the petitioner for the offence under Section

376(2)(a) of IPC and simultaneously, a detailed inquiry was

conducted under A.P. Civil Services (CCA) Rules, 1963.

Petitioner was acquitted in the criminal case as the material

witnesses have turned hostile, however, the charges were held

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proved in the departmental inquiry. Accordingly, he was dismissed

from service vide proceedings dated 11.11.1992. His appeal was

also rejected vide order dated 30.12.1993. Later, the petitioner

approached the A.P.Administrative Tribunal by filing

O.A.No.6009 of 1994. The said O.A. was allowed setting aside the

orders of dismissal from service and directed the respondents to

conduct a fresh inquiry against the petitioner under Pre-1991

A.P.C.S. (CCA) Rules. The writ petition filed against the orders of

Tribunal was dismissed on 19.04.2011. Thereafter, a fresh inquiry

was conducted as per the orders of the Tribunal. The inquiry

officer by conducting oral inquiry, held that the charges against the

petitioner were not proved. Since the inquiry officer has not

properly appreciated the evidence adduced during the inquiry and

simply relied on the testimony of witnesses without going into

facts and also gravity of charges, a dissenting note was issued to

the petitioner/charged officer duly furnishing copy of findings of

the inquiry officer vide memorandum dated 31.12.2015 with a

direction to submit his further representation if any. Accordingly,

petitioner submitted his representation on 11.01.2016. However,

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since the date of birth of petitioner as per his service book is

01.01.1956, he was deemed to have been retired from service by

31.12.2013, therefore, the entire oral inquiry file was sent to the

Director General of Police, Telangana with a request to forward the

same to the Government for final disposal as per Rules.

Thereafter, the Government has issued show cause notice vide

Memo dated 01.05.2017 disagreeing with the findings of inquiry

officer and held the charges as proved for the reasons mentioned in

the dissenting note appended to the show cause notice. In the show

cause notice, Government has decided provisionally to impose a

penalty of withholding 20% pension for a period of five years. In

response to the said show cause notice, the petitioner has submitted

his explanation on 29.05.2017 and on receipt of said explanation,

the Government have decided to confirm the provisional decision

of imposing punishment of withholding 20% pension for a period

of five years, vide G.O.Ms.No.116, dated 04.10.2017 and further,

vide Memo dated 18.08.2018, Government has ordered to treat the

suspension period from 13.10.1988 to 14.11.1992 and the out of

employment period from 15.11.1992 to 31.12.2013 as 'not on

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duty'. It is stated in the counter that the respondents have

implemented the orders of Tribunal in O.A.No.6009 of 1994 by

conducting fresh inquiry into the charges levelled against the

petitioner, as per the Pre-1991 Rules and during the inquiry also,

all reasonable opportunities were given to the petitioner to adduce

evidence in support of his case. Accordingly, the respondents have

prayed to dismiss the writ petition.

8. The allegation against the petitioner was that while he was

working as Head Constable and was Station House Officer of

Nellikuduru Police Station, he called one Guguloth Sathi of

Nallagutta thanda to the Police Station, took her to his residential

quarters in the premises of Police Station and committed rape on

her by threatening to foist a false case against her husband. Apart

from registering a criminal case, departmental inquiry was also

initiated against the petitioner. Though the criminal case has ended

in acquittal, the petitioner was found guilty in the departmental

proceedings, and therefore, he was dismissed from service by order

dated 11.11.1992. When he questioned the same before the

Tribunal by filing O.A.No.6009 of 1994, the Tribunal has allowed

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the said O.A. by order dated 19.08.2003 setting aside the dismissal

order and also directed the respondents to conduct a fresh inquiry

as per Pre-1991 Rules. The respondents, instead of implementing

the orders of Tribunal by initiating fresh inquiry immediately after

such orders, have filed W.P.No.7108 of 2004 before this Court

questioning the orders of Tribunal and got suspended the said

orders. The said writ petition was ultimately dismissed for default

on 19.04.2011. Meanwhile, the petitioner had retired from service

on 31.12.2013 on attaining the age of superannuation. Thereafter,

the 2nd respondent has issued Memo dated 19.07.2014, directing

the 3rd respondent to implement the orders of Tribunal in

O.A.No.6009 of 1994. Thus, from the date of disposal of the O.A.

i.e. 19.08.2003 till the date of retirement of petitioner i.e.

31.12.2013 i.e. for a period of ten years, the respondents, instead of

initiating fresh inquiry as directed by the Tribunal, have

approached this Court by filing writ petition and only after

dismissal of such writ petition for default, the Memo dated

19.07.2014 came to be issued to implement the orders of the

Tribunal. Thus, the respondents have wasted valuable time of ten

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years and initiated fresh inquiry after the retirement of petitioner.

Even in that inquiry, after recording the statements of witnesses,

the inquiry officer has held that the charges levelled against the

petitioner are not proved. Inspite of such findings by the inquiry

officer, the respondents have proceeded further against the

petitioner on the basis of the dissent note of the 1st respondent and

ultimately imposed the punishment of 20% cut in pension for five

years and treating the period of suspension and out of employment

period as 'not on duty'.

9. Thus, the record discloses that the initial order of dismissal

was set aside by the Tribunal and the subsequent inquiry which

was initiated after the retirement of petitioner, also ended in his

favour. Even then, the punishment was imposed on the petitioner

basing on the dissent note of 1st respondent. The statements of the

witnesses along with the victim were narrated in the dissent note.

A perusal of the statements of witnesses discloses that the victim

has deposed that she never went to the residential quarters of the

petitioner and that he has not misbehaved with her. The other two

independent witnesses i.e. PWs.2 and 3 also did not depose

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anything against the petitioner herein. The remaining witnesses i.e.

PWs.4 to 7, who are the official witnesses, have deposed about the

steps taken by them as a part of their official duties. Inspite of the

material witnesses i.e. PWs.1 to 3 not deposing anything against

the petitioner in the inquiry proceedings, it is noted in the dissent

note that the charges against the petitioner are proved beyond

reasonable doubt, which has no basis. Basing on such dissent note,

proceedings were continued against the petitioner and the

punishment is imposed, which is not maintainable and is liable

to be set aside.

10. For the aforesaid reasons, the writ petition is allowed. The

impugned G.O.Ms.No.116, Home (Services-II) Department, dated

04.10.2017 and the consequential Memo No.2837/Ser.II/A1/2016,

dated 18.08.2018 are hereby set aside. The petitioner is entitled for

20% of pension withheld by the respondents. The period of

suspension from 13.10.1988 to 14.11.1992 and the out of

employment period from 15.11.1992 to 31.12.2013 shall be treated

as 'on duty' for all purposes. The respondents shall extend all the

benefits like periodical increments, pay revisions etc., and pay such

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amounts to the petitioner within a period of four months from the

date of receipt of a copy of this order. No order as to costs.

Pending miscellaneous applications, if any, shall stand

closed.

____________________ JUVVADI SRIDEVI, J Date: 26.09.2023

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