Telangana High Court
M. Prabhakar vs The Commissioner Of Police on 29 April, 2024
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
WRIT PETITION No.12953 of 2021
ORDER:
In this Writ Petition, the petitioner is challenging the
order of dismissal from service passed by the respondent
No.1, dated 03.12.2016 and confirmed by the appellate
authority by order dated 16.05.2019, as illegal, arbitrary,
unjust and consequently to set aside the same and also
that the petitioner is entitled for reinstatement to duty with
all consequential benefits including continuity of service,
pay and allowances etc., 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 was recruited as a
Police Constable in the year 1990 and while he was
working as a driver in the office of City Armed Police (CAR),
the petitioner was arrested on 14.07.2015 on the ground of
involvement of a criminal case in Crime No.343/2014,
under Section 302 of IPC of P.S.Medchal and he was under
judicial custody from 15.07.2015 to 30.09.2015 when he
TMD,J
was released on bail. In the meantime, the petitioner was
placed under suspension vide orders dated 23.07.2015 and
a charge memo was issued to the petitioner on 05.02.2016.
The first charge was that the petitioner was unauthorizedly
absent from duties from 14.07.2015 without obtaining any
leave and the second charge was that he was involved in a
Criminal Case in Crime No.343/2015, under Section 302 of
IPC on the file of P.S.Medchal. The learned counsel for the
petitioner submits that against the dismissal order, the
petitioner preferred an appeal and in the meantime, he had
also filed a Writ Petition i.e., W.P.No.43430 of 2018
challenging the dismissal order. This Court, vide orders
dated 29.11.2018, had directed the appellate authority to
look into the judgment of the Criminal Court acquitting the
petitioner and to pass orders in the appeal. It is further
submitted that the appellate authority without looking into
the facts of the case, confirmed the punishment of
dismissal and therefore, the present writ petition has been
filed.
TMD,J
3. Learned counsel for the petitioner submitted
that the charges against the petitioner were two i.e., (i)
unauthorized absence from duty from 14.07.2015; and (ii)
involvement in a Criminal Case. As regards the first charge,
he submits that since the petitioner was arrested on
14.07.2015 and was in judicial custody from 15.07.2015
and the same was intimated to the respondents by the
Police Medchal, the said period cannot be treated as
unauthorized absence as the circumstances were not
under the control of the petitioner to present himself to
duty. Therefore, he submits that the charge of
unauthorized absence is not proved even during the course
of departmental enquiry. As regards the second charge, the
learned counsel for the petitioner submits that the
Criminal Court has gone into the matter and after due
trial, has acquitted the petitioner from all charges and
therefore, the acquittal should have been taken into
consideration atleast by the appellate authority before
confirming the order of dismissal. It is submitted that
during the disciplinary proceedings there was no evidence
against the petitioner in the Criminal Case and also that it
TMD,J
is Criminal Court alone which can give a finding on the
criminal charges against the petitioner as the charges had
nothing to do with his official duties and where the
Criminal Court acquitted the petitioner, the charge against
the petitioner ought to have been deleted.
4. Learned counsel for the petitioner has placed
reliance upon the following judgments in support of his
contentions:
(1) Nar Singh Pal Vs. Union of India and Others 1;
(2) Capt.M.Paul Anthony Vs. Bharat Gold Mines
Limited and Another 2;
(3) G.M.Tank Vs. State of Gujarat and Others 3;
(4) V.Srinivas Vs. APSRTC, Hyderabad and
Another 4.
5. He therefore, submits that the charges against
the petitioner being held as not proved by the Criminal
Court, the impugned order of dismissal be set aside with all
consequential benefits.
1 (2000) 3 SCC 588
2 (1999) 3 SCC 679
3 (2006) 5 SCC 446
4 2013 (5) ALD 798
TMD,J
6. Learned Government Pleader, on the other
hand, relied upon the averments made in the counter
affidavit and submitted that the petitioner was in fact
arrested on 14.07.2015, but no information was given to
the authorities and therefore, he was placed under
suspension till 23.07.2015 and the period from 14.07.2015
was rightly been treated as unauthorized absence. As
regards the Criminal Case is concerned, it is submitted
that the Hon'ble Supreme Court in a number of cases has
held that both the criminal and departmental proceedings
can go on together and as the degree of proof in both the
cases are different, it cannot be said that the departmental
enquiry cannot go on while the criminal case is pending or
that the decision in a Criminal case is binding on the
disciplinary authority. He also placed reliance upon the
judgment of the Hon'ble Supreme Court in the case of
Management of Bharat Heavy Electrical Limited Vs.
M.Mani5.
5 (2018) 1 SCC 285
TMD,J
7. Learned counsel for the petitioner filed a reply
affidavit and submitted that the respondents in their
counter affidavit have themselves admitted that the Police
Medchal has informed the authorities about his arrest in
connection with the Criminal Case and therefore, the
contention of the respondents that they were not aware of
the arrest, is not correct.
8. Having regard to the rival contentions and the
material on record, this Court finds that the two charges
against the petitioner are that of unauthorized absence and
his involvement in a criminal case. As regards the first
charges is concerned, this Court finds that the petitioner
was under the judicial custody and therefore, he was not in
a position to either inform the authorities about his arrest
or report to duty. Therefore, atleast after coming to know
about the criminal case and his arrest in connection
therewith, the respondent should not have issued the
charge memo for unauthorized absence from 14.07.2015.
Therefore, this charge is held to be unsustainable against
the petitioner.
TMD,J
9. As regards the second charge, i.e., involvement
of a criminal case, as rightly pointed out by the learned
counsel for the petitioner, the charges were under Section
302 of IPC and not relating to the official functions of the
petitioner. It is only the Criminal Court which, after due
trial, can pronounce whether the petitioner was guilty of
the offence alleged to have been committed by him. In case,
where the act of misconduct would amount to both
departmental as well as the criminal proceedings, it would
be of much importance that both the proceedings be
concluded independently, but in the case before this Court,
the criminal case has nothing to do with the official
functions of the petitioner and therefore, the decision of the
Criminal Court would have to weigh on the decision taken
by the disciplinary authority of dismissal from service of
the petitioner. This Court finds that the dismissal from
service was in the year 2016, whereas the petitioner was
acquitted from charges in the year 2018, and it was
therefore, brought to the notice of this Court in the writ
petition and this Court had categorically given a direction
to the appellate authority to take the same into
TMD,J
consideration. However, the order of the appellate authority
is wanting in detail. It is passed without any application of
mind by the appellate authority. In fact, there was no
reference even to the order of the Hon'ble High Court in the
Writ Petition while passing the appellate order. Therefore, it
appears that the appellate authority neither considered the
judgment of this Court nor even looked into the acquittal
order before confirming the order of dismissal. The
judgments filed in support of the contentions raised by the
petitioner are to the effect that where there is no evidence
and the Criminal Court has acquitted the accused from the
charges, the departmental authorities would have also to
look into the same before passing any orders. The
judgment relied upon by the learned government pleader is
distinguishable on facts.
10. In view thereof, the writ petition filed by the
petitioner is allowed and the respondents are directed to
reinstate the petitioner into service with consequential
benefits only from the date of acquittal i.e., in the year
2018.
TMD,J
11. Accordingly, this writ petition is allowed. 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
Dated: 29.04.2024
bak
