Telangana High Court
G. Ramesh vs The Government Of Andhra Pradesh Rep. By ... on 1 April, 2024
HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY
WRIT PETITION (TR) No.1076 of 2017
ORDER:
This writ petition is filed seeking to declare Memo
No.6644/Vig.III(1)/2010-4 dated 24.01.2011 issued by the
Government, whereby the Appeal preferred by the petitioner
against the proceedings of the Transport Commissioner vide
R.No.133/3/2000-2 dated 24.04.2010 was rejected, as illegal,
arbitrary and in violation of principles of natural justice.
2. The facts of the case in brief, shorn off unnecessary details,
that led to filing of the present Writ Petition are as follows:-
The petitioner was appointed as Attender in the Office of the
Regional Transport Officer, Karimnagar on 21.06.1999. While so,
it was alleged that during the period from 17.08.1999 to
02.11.1999, he prepared forged challans and misappropriated
compounding fee of Rs.2,07,310/- and on the said charge, a
Criminal Case was filed against him, vide Calendar Case No. 145
of 2001. After full-fledged trial, the learned Additional Judicial
Magistrate of First Class, Karimnagar, vide judgment, dated
21.10.2005, found the petitioner not guilty of the offences
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punishable under Sections 409, 420 and 468 r/w Section 34 of IPC
and accordingly, acquitted him.
2.1. It is stated that after acquittal by the Criminal Court, on the
same allegation, a charge memo viz. No.133/C2/V3/2000 dated
25.4.2005 was issued to the petitioner by the Transport
Commissioner, to which the petitioner submitted his explanation
on 20.05.2005 denying the charge levelled against him and stated
that on the same allegation, a criminal case had been filed against
him and he was acquitted by the Criminal Court and therefore, the
Departmental enquiry is a bar.
2.2. It is further stated that in spite of explanation and the
Judgment of the Criminal Court acquitting the petitioner, the Joint
Transport Commissioner, (V&E), Hyderabad, who was appointed
as Enquiry Officer, conducted a joint enquiry against the petitioner
as well as one Sri B.Bhadru Naik, Assistant Motor Vehicle
Inspector (AMVI), wherein the charged framed against the
petitioner is as under:-
"That Sri G. Ramesh, S/o Sri Venkataiah, joined
Government service on 21.06.1999. While he was
functioning as Attender attached to AMVI Flying Squad
at Karimnagar District, on deputation from January,
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1999 to March, 2000, has committed grave misconduct
inasmuch as he and AMVI Flying Squad namely
Sri B. Bhadru, embezzled the Government revenue to a
tune of Rs. 2,07,310/-by way of submitting forged
challans in number 226 in the office of the Dy. Transport
Commissioner and Secretary at Karimnagar and failed to
maintain absolute integrity in violation of the A.P. Civil
Services (Conduct) Rules, 1964.
Thus, G. Ramesh, by his above mentioned acts,
has exhibited lack of integrity, devotion to duty and
conduct, unbecoming of a member of service and thereby,
contravened Rule 3 (1) & (2) of Andhra Pradesh Civil
Service (Conduct) Rules, 1964."
2.3. Thereafter, the Enquiry Officer considering the defence
taken by the petitioner, but without seeking any further evidence,
except examining the prosecution witnesses who were already
examined before the Criminal Court, submitted his report that the
charges framed against the petitioner are held to be proved.
2.4. Subsequently, the Disciplinary Authority-Transport
Commissioner, after careful examination of the Enquiry Report,
the explanation submitted by the petitioner to the Enquiry Report
and the material available on record, found that the charge levelled
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against the petitioner was established and accordingly, imposed the
penalty of dismissal of the petitioner from service.
2.5. It is further stated that against the said order, the petitioner
filed an Appeal to the Government on 17.05 2010, and as the
Appeal was not disposed of, he approached the Tribunal by filing
O.A.No.4696 of 2010. The Tribunal disposed of the said OA vide
judgment dated 14.07.2010, with a direction to the respondents to
consider the Appeal preferred by the petitioner and pass
appropriate orders thereon within a period of three months from the
date of that Order.
2.6. It is further stated that pursuant to the Orders of the
Tribunal, even without going into the merits of the case and
without considering the grounds urged by the petitioner, the
Government rejected the Appeal of the petitioner, vide Memo
No.6644/Vig.III(1)/2010-4 dated 24.01.2011. Challenging the
same, the petitioner filed the present Writ Petition.
3. Learned counsel for the petitioner contended that though the
petitioner was acquitted by the Criminal Court, on the same
charges, departmental enquiry was initiated against the petitioner
which is bad in law and that the Enquiry Officer has submitted his
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enquiry report, even without examining any other witness except
the prosecution witnesses who deposed in the criminal Court,
holding that the charge is proved against the petitioner. He further
contended that the findings of the Enquiry Officer are not based on
evidence; and that on completion of joint enquiry against the
petitioner and one Sri Bhadru Naik, AMVI, based on the Enquiry
Report, the Transport Commissioner, Hyderabad imposed the
penalty of dismissal of the petitioner from service. However, on
appeal filed by Bhadru Naik, the Government set aside the order of
dismissal of the said Bhadru Naik from service and reinstated him
into service imposing the penalty of stoppage of five annual grade
increments with cumulative effect, whereas, the Appeal filed by the
petitioner against the order of dismissal was rejected. Thus, learned
counsel contended that there is no parity in this case and sought
this Court to declare the impugned Memo as illegal and
consequently, to set aside the same.
4. Learned Government Pleader for Services-III appearing for
the respondent reiterating the averments made in the counter-
affidavit contended that under the Andhra Pradesh Civil Service
(Conduct) Rules, there is no bar for initiation of disciplinary action
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against the petitioner even if he is acquitted by the Criminal Court.
He contended that the Enquiry Officer, basing on the evidence
produced and the explanation submitted by the petitioner was not
found satisfactory, submitted the Enquiry Report holding that the
charge against the petitioner is proved. He further submitted that
the Tribunal has set aside the order of dismissal of the petitioner's
co-charged officer i.e., Bhadru Naik on technical grounds and
therefore, the petitioner cannot claim the same relief as extended to
the co-charged officer as the offence committed by them are
different and accordingly, prayed the Court to dismiss the Writ
Petition.
5. In support of his submissions, learned counsel for the
petitioner relied upon the decisions of the Hon'ble Supreme Court
in Deputy Inspector General of Police and another Vs.
Samuthiram 1, Ram Lal Vs. State of Rajasthan and others 2 and
G.M.Tank Vs. State of Gujarat and others 3.
6. A perusal of the record discloses that the disciplinary
proceedings were initiated against the petitioner, who was
appointed as Attender in the office of Regional Transport Officer,
(2013) 1 SCC 598
2023 Law suits (SC) 1170
(2006) 5 SCC 446
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Karimanagar, on the charge that he along with one Bhadru Niak,
AMVI, embezzled the Government revenue to a tune of
Rs.2,07,310/- by way of submitting forged challans 226 in number
and misappropriated the amount. Further, a criminal case vide
C.C.No.145 of 2001 was registered against the petitioner along
with three others, wherein Bhadru Naik was shown as accused
No.1, however, his name was subsequently deleted while filing
charge sheet as he was absconding. The Criminal Court observed
that the prosecution has not offered any explanation on what basis
it has deleted the name of the AMVI from the charge sheet and
cited him as witness (LW-2).
6.1. The Criminal Court after full-fledged trial, acquitted the
petitioner of the charges framed against him. Subsequently, the
Disciplinary Officer, based on the Enquiry Report submitted by the
Enquiry Officer, issued Memo No.133/V3/2000-2, dated
31.03.2010, imposed the punishment of dismissal of the petitioner
from service. Challenging the same, the petitioner filed Appeal
before the Government. During the pendency of the said appeal,
the petitioner approached the Tribunal against the orders of
dismissal and the Tribunal without going into the merits of the case
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observed the petitioner hurriedly rushed to it without waiting for
the result of the Appeal filed by him before the Government and
accordingly, disposed of the said O.A. vide order, dated
14.07.2010, with a direction to the respondents to consider and
pass appropriate orders on the Appeal filed by the petitioner within
a period of three months from that day. Pursuant to the said order,
the Government issued the impugned Memo observing that the
Appeal has no merit and accordingly, rejected the Appeal.
Aggrieved by said memo, the present Writ Petition is filed.
7. In this case, it is pertinent to note that in the complaint
lodged by one Garpala Panduranga Rao, Deputy Transport Officer
(DTO), Karimnagar, (P.W-1) before the Police though he did not
specifically mention about the quantum of amount misappropriated
and as to who misappropriated the said amount, the memo issued
by him to the then AMVI shows that an amount of Rs.80,180/- was
misappropriated by the latter, whereas, the statement prepared by
P.W-1 under ExP-13 shows that an amount of Rs.2,07,310/- was
misappropriated by the then AMVI and further, the memo dated
20.04.2001 shows that an amount of Rs.9,340/- was
misappropriated by the petitioner. Therefore, the Criminal Court in
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its judgment observed that there is discrepancy in the amount
actually misappropriated and as to who misappropriated the said
amount. The Criminal Court further observed that the element of
entrustment, i.e., entrustment of the work of depositing the
amounts collected as compounding fee to the petitioner by the
AMVI is missing. The Criminal Court further observed that a
scrutiny of the challans under Exs.P-6, Petitioner-7 and Petitioner-
11 disclose that they were remitted by one Ashok and not by the
petitioner, and ultimately, the Criminal Court acquitted the
petitioner of the charges framed against him for the offences under
Sections 409, 420 of 468 IPC.
8. Thus, the petitioner was acquitted by the Criminal Court on
due consideration of entire evidence on record and not on mere
technical grounds or on benefit of doubt.
9. Subsequent thereto, the Disciplinary Authority-Transport
Commissioner, Hyderabad, after careful examination of the Report
of the Enquiry Officer and not being satisfied with the explanation
submitted by the petitioner, imposed the major penalty of dismissal
of the petitioner from service.
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10. Coming to the citation relied upon the learned counsel for
the petitioner in S.Samuthiram's case (1st cited supra), it is to be
seen that it was a case where a police official was alleged to have
misbehaved with a woman i.e., an eve-teasing case and the said
officer was acquitted in the criminal case, but he was found guilty
in the departmental enquiry and punishment was imposed against
him. The O.A. filed against the same was dismissed by the
Tribunal. The matter was carried to High Court of Madras, wherein
the High Court in its judgment took a view as under:-
"If a criminal case and departmental proceedings
against an official are based on the same set of facts and
evidence and the criminal case ended in an honourable
acquittal and not on technical grounds, imposing the
punishment of removal of the delinquent official from
service, based on the findings of domestic enquiry would
not be legally sustainable."
11. However, the Hon'ble Supreme Court on SLP filed before
it, held as under:
"In the case on hand, the prosecuting did not take steps
to examine many of the crucial witnesses on the ground
that the complainant and his wife turned hostile. The
Court, therefore, acquitted the accused giving the
benefit of doubt. We are not prepared to say that in the
instant case, the respondent was honourably acquitted
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by the criminal court and even if it is so, he is not
entitled to claim reinstatement since the Tamilnadu
Service Rules do not provide so.
In view of the abovementioned circumstances, we
are of the view that the High Court was not justified in
setting aside the punishment imposed in the
departmental proceedings as against the respondent, in
its limited jurisdiction under Article 226 of the
Constitution of India."
12. The above decision, in fact, is against the case of the
petitioner seeking to set aside the order of the Disciplinary
Authority imposing the punishment of dismissal from service.
Hence, the said decision is no way helpful to the petitioner.
13. In Ram lal's case (2nd cited supra), the Hon'ble Supreme
Court held as under:-
"If the charges in the departmental enquiry and the
criminal court are identical or similar, and if the
evidence, witnesses and circumstances are one and the
same, then the matter acquires a different dimension. If
the court in judicial review concludes that the acquittal in
the criminal proceeding was after full consideration of the
prosecution evidence and that the prosecution miserably
failed to prove the charge, the Court in judicial review
can grant redress in certain circumstances. The court will
be entitled to exercise its discretion and grant relief."
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14. In G.M.Tank's case (3rd cited supra), the Hon'ble Supreme
Court held as under:-
"The appellant has been honourably acquitted by the
competent court on the same set of facts, evidence and
witness and therefore, the dismissal order based on the
same set of facts and evidence on the departmental side
is liable to be set aside in the interest of justice."
15. In the instant case, admittedly, the charges against the
petitioner in the departmental enquiry and in the criminal case are
identical/similar and further, in the departmental enquiry, except
the prosecution witnesses who were examined before the Criminal
Court, no other witness was examined by the Enquiry Officer.
After full-fledged trial of the criminal case, the Criminal Court has
honourably acquitted the petitioner of the charges framed against
him.
16. Therefore, the decisions of the Hon'ble Supreme Court in
Ram lal's case (2nd cited supra) G.M.Tank's are squarely
applicable to the present case.
17. This Court is conscious of the fact that the power of this
Court to review the order of the Disciplinary Authority is very
limited under Article 226 of the Constitution of India. The scope of
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enquiry is only to examine whether the decision-making process is
legitimate. As part of that exercise, the courts exercising power of
judicial review are entitled to consider whether the findings of the
Disciplinary Authority have ignored material evidence and if it so
finds, courts are not powerless to interfere. [See United Bank of
India vs. Biswanath Bhattacharjee 4]
18. We are also conscious of the fact that mere acquittal by a
criminal court will not confer on an employee a right to claim any
benefit including reinstatement.
19. In the case on hand, the petitioner is honourably acquitted
by the Court after full-fledged trial and the departmental
proceedings are initiated against him based on the set of charges,
evidence and witness, therefore, following the judgment in Ram
lal's case, this Court can exercise its discretion and grant the relief
redressing the grievance in certain circumstances. Thus, this Court
is of the considered view that the impugned Memo issued by the
Government, upholding the dismissal order passed by the
Disciplinary Authority, is liable to be set aside in the interest of
justice.
2022 INSC 117 (2022) 13 SCC 329
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20. Here, it is not out of place to mention that in respect of the
co-charged officer along with the petitioner against whom
embezzlement of Government revenue and misappropriation of the
amounts were alleged, joint enquiry was conducted and the
Enquiry Officer submitted his report stating that the charges
against the petitioner and Bhadru Naik, AMVI i.e., co-charged
officer were held proved and based on the said report, the
Disciplinary Authority imposed the punishment of dismissal from
service both against the petitioner and the said Bhadru Naik.
However, the Appeal filed by the said Bhadru Naik against the said
order was allowed and he was reinstated into service, modifying
the punishment from that of dismissal from service to stoppage of
five annual grade increments with cumulative effect against him,
vide G.O.Rt.No.558, Transport Roads and Buildings (Vig.III.1)
Department, dated 01.06.2012.
21. However, the Appeal filed by the petitioner against the order
of the Disciplinary Authority imposing the punishment of
dismissal from service was rejected by the Government.
Admittedly, the petitioner is Attender working under the co-
charged officer i.e., Bhadru Naik, AMVI. One of the duties of the
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AMVI is to collect compounding fee from the offenders and remit
the fine amounts so collected in the Bank through challans and the
officers concerned after making remittances into the Bank submit
challans in his office. The AMVI is also required to maintain
Registers showing entries of remittances made by them through
V.C.Rs. Thus, when such duties are assigned to the AMVI, he
failed to discharge the same with integrity and thrown the blame
on the petitioner, thereby, escaping from the lapses and wrongful
deeds on his part. In such an event, the petitioner cannot be made a
scapegoat when there is no specific entrustment of the duty of
depositing the compounding fee into the Bank to him.
22. In the light of the aforesaid facts and circumstances of the
case and foregoing reasons, discussion and also in the light of the
legal position, this Court is of the opinion that the petitioner is
entitled to the relief sought for.
23. Accordingly, this Writ Petition is allowed and the impugned
Memo No.6644/Vig.III(1)/2010-4 dated 24.01.2011 issued by the
Government is set aside. The respondents are directed to reinstate
the petitioner into service and pass necessary orders within a period
of eight weeks. Since the petitioner has not served the State during
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the period of his dismissal from service, he is not entitled to be
paid salary on the principle of 'no work, no pay', however, he is
entitled to notional benefits and continuity of service. There shall
be no order as to costs.
24. Pending Miscellaneous Applications, if any, shall stand
closed.
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LAXMI NARAYANA ALISHETTY,J
Date:01.04.2024
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