Telangana High Court
Y Srinivas Rao vs State Of Telangana on 2 April, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
W.P.No. 17695 of 2021
ORDER:
In this writ petition, the petitioner is seeking a writ of
mandamus declaring the action of the respondents No.2 and 3
in dismissing the petitioner from service vide orders dated
09.09.2014 on the basis of conviction and without considering
the circumstances, as illegal, arbitrary, unconstitutional and
consequently to direct the respondent No.2 to reinstate the
petitioner into service and to pass such other order or orders in
the interest of justice.
2. Brief facts leading to the filing of the present writ
petition are that the petitioner joined in Police Department on
10.10.1993 as a Police Constable and was subsequently
promoted as a Head Constable and he worked as such till his
dismissal from services on 09.09.2014. It is submitted that a
false case vide Crime No.58/2003, under Section 498-A & 109
IPC was registered against the petitioner at Penamaluru Police
Station of Vijayawada, at the behest or complaint of his wife. It
is submitted that subsequently, it was registered as
C.C.No.1078/2002 on the file of II Additional Chief Metropolitan
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Magistrate, Vijayawada and after trial, the petitioner was
acquitted from the charges vide orders dated 06.08.2008.
However, the petitioner's wife/complainant filed an appeal
before the XIII Additional Sessions Judge, Krishna District at
Vijayawada in C.A.No.203/2008 and after due consideration,
the Appellate Court has allowed the appeal in part by modifying
the order dated 06.08.2008 and the petitioner was convicted for
the offence under Section 498-A of IPC and sentenced to
rigorous imprisonment for a period of three years and was also
directed to pay a fine of Rs.5,000/- and in default of payment of
fine, he was liable to undergo simple imprisonment for a further
period of one month.
3. Thereafter, the petitioner challenged the said order
before the Hon'ble High Court of Andhra Pradesh in
Crl.A.No.1153/2011 and vide interim order dated 12.10.2011
the Court passed order suspending the execution of sentence of
imprisonment passed by the XIII Additional Sessions Judge,
Krishna District at Vijayawada in Criminal Appeal No.203/2008
pending disposal of the appeal and the petitioner was ordered to
be released on bail on the same terms and conditions as
imposed by the Appellate Court. Subsequently, vide proceedings
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dated 09.09.2014 in D.O.No.2195/2014, the respondent No.3
has dismissed the petitioner from service on the ground that the
petitioner was convicted in C.C.No.1078/2002 by invoking the
provisions of Article 311(2) of the Constitution of India and the
proviso thereunder. The petitioner, thereafter made a
representation to the authorities, but the authorities have
observed that the High Court has merely suspended the
sentence pending appeal, but the conviction still stands and
therefore, dismissal under Rule 25 of APCS (CC&A)-1991 by the
Commissioner of Police, Cyberabad, was proper. It was further
observed that if he was acquitted on appeal in High Court, then
only the dismissal order will fail and in that case, the OE should
be got completed by the CP, Cyberabad. Challenging the said
order, the present writ petition has been filed.
4. Leaned counsel for the petitioner reiterated the
above submissions and submitted that the charges against the
petitioner are purely personal and was made by his wife and
they have nothing to do with the discharge of his official duties.
It is submitted that initially, petitioner had been acquitted of all
charges, but in the appeal, he has been convicted for only the
charge under Section 498-A of IPC, but the same has also been
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suspended by the High Court of Andhra Pradesh vide orders
dated 12.10.2011 and that the respondents have taken the
action of dismissal from service in the year 2014 i.e., after
suspension of the conviction order. Therefore, according to him,
the respondents have not conducted any enquiry before
dismissing the petitioner from service, but they have
straightaway dismissed the petitioner from service and have
accordingly violated the CC&A rules.
5. Learned counsel for the petitioner has also placed
reliance upon the judgment of the Hon'ble Supreme Court in the
case of Divisional Personnel Officer, Southern Railway &
Another Vs. T.R. 1, wherein the Hon'ble Supreme Court has
held that where the disciplinary authority has proceeded to pass
the order of removal from services straightaway on the basis of
conviction of the delinquent employees by the criminal Courts,
it is bad in law. It is further submitted that under Article 311(2),
enquiry ought to have been held by the authorities before taking
any disciplinary action.
6. Learned Government Pleader for Home, on the other
hand, supported the order of dismissal and submitted that
1 1975 AIR 2216
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since the petitioner has been convicted for the offence under
Section 498-A of IPC, the respondents had no option but to
dismiss the petitioner from service. Further, he placed reliance
upon the judgment of the Hon'ble Supreme Court in the case of
Management of Bharat Heavy Electricals Limited Vs.
M.Mani 2, for the proposition that both the disciplinary as well
as criminal proceedings can go on simultaneously and even if
the petitioner is subsequently acquitted of the charges, it is still
open to the department to proceed against the petitioner for the
said offence.
7. Having regard to the rival contentions and the
material on record, this Court finds that the Hon'ble Supreme
Court in the case of Divisional Personnel Officer, Southern
Railway & Another (cited supra) has analyzed the provisions of
Article 311(2) of the Constitution of India and has observed as
under:
(a) where a person is dismissed or removed or
reduced in rank on the ground of conduct which has led
to his conviction on a criminal charge;"
An analysis of the provisions of Art.311(2)
extracted above would clearly show that this
constitutional guarantee contemplates three stages of
2 (2018) 1 SCC 285
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departmental inquiry before an order of dismissal,
removal or reduction can be passed, namely, (1) that on
receipt of a complaint against a delinquent employee
charges should be framed against him and a
departmental inquiry should be held against him in his
presence; (ii) that after the report of the departmental
inquiry is received the appointing authority must come to
a tentative conclusion regarding the penalty to be
imposed on the delinquent employee; and (iii) that before
actually imposing the penalty a final notice to the
delinquent employee should be given to show cause why
the penalty proposed against him be not imposed on him.
Proviso (a) to Art.311(2), however, completely dispenses
with all the three states of departmental inquiry when an
employee is convicted on a criminal charge. The reason
for the proviso is that in a criminal trial the employee has
already had a full and complete opportunity to contest the
allegations against him and to make out his defence. In
the criminal trial charges are framed to give clear notice
regarding the allegations made against the accused,
secondly, the witnesses are examined and cross-
examined in his presence and by him; and thirdly, the
accused is given full opportunity to produce his defence
and it is only after hearing the arguments that the Court
passes the final order of conviction or acquittal. In these
circumstances, therefore, if after conviction by the Court a
fresh departmental inquiry is not dispensed with, it will
lead to unnecessary waste of time and expense and a
fruitless duplication of the same proceedings all over
again. It was for this reason that the founders of the
Constitution thought that where once a delinquent
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employee has been convicted of a criminal offence that
should be treated as a sufficient proof of his misconduct
and the disciplinary authority may be given the discretion
to impose the penalties referred to in Art.311(2), namely,
dismissal, removal or reduction in rank. It appears to us
that proviso (a) to Art.311(2) is merely an enabling
provision and it does not enjoin or confer a mandatory
duty on the disciplinary authority to pass an order of
dismissal, removal or reduction in rank the moment an
employee is convicted. This matter is left completely to the
discretion of the disciplinary authority and the only
reservation made is that departmental inquiry
contemplated by this provision as also by the
Departmental Rules is dispensed with. In these
circumstances, therefore, we think that r.14(1) of the
Rules of 1968 only incorporates the principles enshrined
in proviso (a) to Art.311(2) of the Constitution. The words
'where any penalty is imposed' in r.14(1) should actually
be read as 'where any penalty is impossible', because so
far as the disciplinary authority is concerned it cannot
impose a sentence. It could only impose a penalty on the
basis of conviction and sentence passed against the
delinquent employee by a competent court. Furthermore
the rule empowering the disciplinary authority to consider
circumstances of the case and make such orders as it
deems fit clearly indicates that it is open to the
disciplinary authority to impose any penalty as it likes. In
this sense, therefore, the word 'penalty' used in r.14(1) of
the Rules of 1968 is relatable to the penalties to be
imposed under the Rules rather than a penalty given by a
criminal Court.
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8. In the judgment relied upon by the learned
government pleader for home in the case of Management of
Bharat Heavy Electricals Limited (cited supra), the Hon'ble
Supreme Court has held that both the criminal proceedings and
departmental proceedings are two separate proceedings in law
and they can both be held independently, as the standard of
proof required in a domestic enquiry and the standard of proof
in criminal case are all together different. For the sake of ready
reference, the relevant portion is reproduced hereunder:
20. Similarly, in our considered view, the Labour
Court failed to see that the criminal proceedings and
departmental proceedings are two separate proceedings
in law. One is initiated by the State against the
delinquent employees in criminal court and other i.e.
departmental enquiry which is initiated by the employer
under the Labour/Service Laws/Rules, against the
delinquent employees.
21. The Labour Court should have seen that the
dismissal order of the respondents was not based on the
criminal court's judgment and it could not be so for the
reason that it was a case of acquittal. It was, however,
based on domestic enquiry, which the employer had
every right to conduct independently of the criminal case.
22. This Court has consistently held that in a case
where the enquiry has been held independently of the
criminal proceedings, acquittal in criminal court is of no
avail. It is held that even if a person stood acquitted by
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the criminal Court, domestic enquiry can still be held-the
reason being that the standard of proof required in a
domestic enquiry and that in criminal case are altogether
different. In a criminal case, standard of proof required is
beyond reasonable doubt while in a domestic enquiry, it
is the preponderance of probabilities. (See Karnataka
SRTC v. M.G. Vittal Raos.)
9. On a reading of these two judgments, it becomes
clear that the rationale profounded therein is that both the
departmental proceedings as well as criminal proceedings can
both be held independently, but for imposition of a major
penalty, in addition to the criminal proceedings,
departmental enquiry as envisaged under Article 311(2) is
mandatory. The Hon'ble Supreme Court has also held that
the Proviso (a) to Article 311(2) is merely an enabling
provision and it does not enjoin or confer a mandatory duty
on the disciplinary authority to pass an order of dismissal,
removal or reduction in rank the moment an employee is
convicted and the matter is left completely to the discretion of
the disciplinary authority. Since the degree of proof in both
the cases, i.e. as required in a domestic enquiry and that in
criminal case are both different, it is but necessary that the
disciplinary authority conducts an enquiry before imposing
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the major penalty of dismissal from service. In the case on
hand, the said procedure has not been followed by the
respondents particularly since the petitioner was acquitted by
the trial Court, but convicted by the appellate Court and the
criminal appeal is pending before this Court.
10. In view of the same, the order of the dismissal
dated 09.09.2014 only on the ground of conviction in the
criminal case, is set aside and the respondents are directed to
reinstate the petitioner into service and are also given liberty
to initiate disciplinary proceedings afresh, if they intend to
take disciplinary action. The interregnum period of dismissal
from service dated 09.09.2014 till the date of reinstatement
shall be subject to the outcome of the disciplinary
proceedings, if initiated. The respondents are therefore
directed to take a decision thereon in accordance with law. It
is needless to mention that the petitioner shall be given fair
opportunity of hearing both in disciplinary proceedings, if
initiated, and are also on the treatment to be given to the
interregnum period i.e., from the date of dismissal to till the
date of reinstatement.
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11. Accordingly, this writ petition is disposed of.
There shall be no order as to costs.
12. Miscellaneous petitions, if any, pending in this
writ petition, shall stand closed.
____________________________
JUSTICE T.MADHAVI DEVI
Date: 02.04.2024
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