Telangana High Court

Mansoor Shah Khan vs The Superintendent Of Police on 28 February, 2024

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

                WRIT PETITION (TR) No.5536 of 2017
ORDER:

This writ petition has been filed by the petitioner

seeking the following relief:

"... to declare the action of the 1st respondent in issuing the impugned Memo No.52/A5/PR/ OE(A11)/2012-16 dated 18.01.2016 appointing the Enquiry Officer to conduct oral enquiry against the applicant in pursuance of Memorandum of Charge issued by the 1st respondent vide C.No.52/A5/PR/ OE(A11)/2012 dated 05.12.2012 and proceeding with the oral enquiry pending criminal trial before the Hon'ble PCR Court, Karimnagar in C.C.No.8/2015 even though the charges in the criminal case as well as in departmental proceedings are one and the same is as illegal, arbitrary, unjust and violative of principles of natural justice equity and fair play besides being contrary to the law on the subject and consequently direct the respondents not to proceed with the oral enquiry against the applicant for the charges leveled against him pending the criminal trial before the Honble PCR Court at Karimnagar in C.C.No.8/2015 and pass such other order or orders...."

2. The brief facts leading to filing of the present petition

are as under:

(i) The petitioner is now working as Senior Assistant in

District Police Office, Karimnagar and while working as such,

a crime was registered against him vide FIR No.59/2013 on LNA,J

07.09.2012 by the Police, Karimnagar Rural Police Station

basing on the false complaint given by one Danaveni Srilatha

for the offence under Sections 448, 427 r/w. 34 of IPC. After

investigation the Police filed the charge sheet and the same is

numbered as CC.No.8/2015 and is pending for trial before

the Hon'ble PCR Court at Karimnagar.

(ii) that basing on the registration of criminal case

against him, the 1st respondent called for a preliminary

enquiry report from the Circle Inspector of Police, Karimnagar

(Rural) P.S. vide Memo C.No.52/PR/OE(A11)/2012, dated

10.10.2012. As per the Instructions of the 1st respondent the

CI of Police, Karimnagar (Rural) has conducted preliminary

enquiry against the petitioner and submitted report to the 1st

respondent in C.No.286/C1-KNRⓇ/2012, dated 10.11.2012.

Based on the above preliminary enquiry report, the 1st

respondent had issued the Charge Memo dated 05.12.2012.

The charges framed against the petitioner are that he has

exhibited grave misconduct by indulging in criminal acts by

provocating his partners to trespass into the house

constructed under Indiramma Housing Scheme at Plot Nos.

6, 7 and 18 at Rekurthy (v) of Karimnagar (M) on 06.09.2012 LNA,J

and got dismantled them with JCB, which was engaged by

the petitioner with a mala fide intention and thereby violated

Rule 3 of APCS (Conduct) Rules, 1964. The accusation made

in the criminal case and the departmental proceedings are

one and the same.

iii) As per the directions of the 1st respondent the

petitioner submitted his explanation to the Memorandum of

Charge stating that he is nothing to do with the alleged

offences and only to defame him, he was implicated in the

false case. But, the 1st respondent without considering the

explanation, had appointed the 2nd respondent as enquiry

officer by Memo dated 18.01.2016 to conduct oral enquiry

against the petitioner.

iv) that according to Section 179 (2) of the A.P. Police

Manual, when a criminal case is pending in a Court,

departmental proceedings should be suspended, in such

cases it must be decided whether the departmental

proceedings should be taken in the first instance before filing

a charge sheet. However, departmental enquiry can take

place simultaneously with police Investigation. In the present LNA,J

case, the respondents have already filed Charge sheet before

the competent criminal court and the same is pending and

therefore, the respondents 1 and 2 have no authority to

conduct departmental proceedings at this distance of time

and any such action is totally in contravention of Section179

(2) of A.P. Police Manual apart from contrary to the dictum of

law.

v) that it is now well settled principle of law that when

the allegations in the criminal case and the charges In the

departmental enquiry are one and the same, the disciplinary

proceedings ought not to have been proceeded till the

conclusion of the criminal case. The Hon'ble High Court and

the Hon'ble Apex has held in various cases including

M.Koteswara Rao v. Sr.Commandant, CISF Unit,

Sriharikota and others 1 that the departmental proceedings

and criminal proceedings are one and the same, the

departmental proceedings can be postponed till the disposal

of the criminal case. It is averred that seeking to conduct

departmental proceedings even though there is no authority

on the respondents to do so which is highly illegal and

2011 (5) ALT 777 (SB) LNA,J

contrary to the settled law by the Hon'ble Court in

G.M.Tank's Case reported in 2006 (4) SCJ 1.

vi) that the case of the petitioner is similar and seeking

similar directions. As aforesaid if the departmental

proceedings have been concluded, it would reflect on the

criminal proceedings since the witnesses both in criminal

case and the departmental proceedings are one and the

same. Therefore, viewed from any angle, the impugned action

of the respondents in seeking to conduct enquiry while the

criminal case on the same set of facts was pending is

arbitrary and contrary to the law on the subject. Hence, the

petitioner filed the O.A. before the A.P.Administrative

Tribunal (APAT).

3. The APAT, on 12.02.2016, while admitting the O.A.,

granted interim order that pending disposal of the O.A.,

further proceedings in Memorandum of charge dated

05.12.2012 of the District Police Office, Karimnagar, are

stayed.

4. The respondents no.1 filed vacate petition vide

V.M.A.No.231 of 2016 in O.A.No.373 of 2016, denying the LNA,J

averments of the petitioner in the application and contended

that 1st respondent had issued memorandum of charge vide

C.No.52/A5/PR/OE/A11/2012, dated 05.12.2012 and

issued proceedings in C.No.52/A5/PR/OE/A11/2012, dated

01.07.2013 appointing OSD, Karimnagar as enquiry officer to

conduct enquiry against the petitioner. The proceedings

dated 18.01.2016 are issued only to change of the enquiry

officer i.e., OSD, Karimnagar to DSP, DSB, Karimnagar.

Therefore, the said O.A. is not filed within the time prescribed

under Section 21 of the Administrative Tribunal Act, 1985.

But only to cover up delay in filing the O.A., the petitioner

quoted the proceedings dated 18.01.2016.

5. It is contended that petitioner has failed to submit any

explanation in reply to the charge memo even after reminders

issued and in the absence any explanation, the 1st

respondent ordered for an ex parte oral enquiry appointing

OSD vide proceedings dated 01.07.2013 and later 2nd

respondent was appointed as enquiry officer on

administrative reasons. It is further contended that petitioner

is a member of ministerial staff, but not executive staff, that

the ministerial staff working in police department are LNA,J

governed by AP Ministerial service and the AP Police manual

orders are related to the executive staff of police department.

Therefore, the order no.179 (2) of AP Police manual is not

applicable to the present case.

6. It is further contended that departmental enquiry

against the petitioner has been initiated for violation of Rule 3

of APCS (Conduct) Rules, 1964, but not for involvement of

criminal case and finally prayed to vacate the interim order

dated 12.02.2016 and dismiss the O.A.

7. Consequent to abolition of APAT, the said OA was

transferred to this Court and the same is renumbered as

W.P.(TR).No.5536 of 2017.

8. Heard Sri D.Bala Kishan Rao, the learned counsel for

the petitioner and the learned Government Pleader appearing

for the respondents.

9. Learned counsel for the petitioner submitted that

petitioner was acquitted in criminal case by the Judicial

Magistrate of First Class (Special Mobile), Karimnagar on

22.11.2016 and therefore, the disciplinary proceedings

initiated against the petitioner can be dropped as the LNA,J

witnesses in both the criminal case and the disciplinary

proceedings are one and the same. He further submitted that

impugned action of the respondents in continuing the

disciplinary proceedings even after acquittal in criminal case

is contrary to law and therefore, prayed to allow the writ

petition. In support of his contention, he relied upon the

decision of the Hon'ble Apex Court in G.M.Tank vs. State of

Gujarat and another [Appeal (Civil) No.2582 of 2006 dated

10.04.2006].

10. Per contra, the learned Government Pleader for

respondents, while reiterating the averments made in the

counter-affidavit, contended that the proceedings in a

criminal case and the departmental proceedings operate in

distinct and different jurisdictional areas. Though the

petitioner was acquitted in criminal case, he cannot escape

from the departmental proceedings, where a charge relating

to misconduct is being investigated, the factors in

disciplinary proceedings are many, as such, an enforcement

of discipline or to investigate the level of integrity of the

delinquent, the standard of proof required in those

proceedings is also different than that required in a criminal LNA,J

case; that while in the departmental proceedings, the

standard of proof is one of preponderance of probabilities, in

a criminal case, the charge has to be proved beyond

reasonable doubt. He therefore, prayed to dismiss the writ

petition.

Consideration:

11. A perusal of the record discloses that petitioner was

working as Senior Assistant in Police Department and while

working as such, he was involved in criminal case vide

C.C.No.8 of 2015 and the competent authority also initiated

departmental proceedings against him. The APAT by order

dated 12.02.2016 granted interim relief staying the

Memorandum of charge dated 05.12.2012 issued by the 1st

respondent.

12. Further, the criminal case filed against the petitioner

had ended in acquittal vide judgment dated 22.11.2016 by

the Judicial Magistrate of First Class (Special Mobile),

Karimnagar. It is contended by the learned counsel for

petitioner that the facts, evidence and charges are same in

criminal case as well as the departmental proceedings and LNA,J

therefore, respondents cannot proceed further with the

departmental proceedings against the petitioner.

13. In Union of India and others vs. Sitaram Mishra and

another 2, the Hon'ble Apex Court held as under:

"14. The fact that the first respondent was acquitted in the course of the criminal trial cannot operate ipso facto as a ground for vitiating the finding of misconduct which has been arrived at during the course of the disciplinary proceedings. The High Court, in our view, has drawn an erroneous inference from the decision of this Court in M. Paul Anthony v. Bharat Gold Mines Ltd. [M. Paul Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679 : 1999 SCC (L&S) 810] . The High Court adverted to the following principle of law laid down in the above judgment : (SCC p. 687, para 13)

"13. ... While in the departmental proceedings the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubt. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance."

14. In State of Karnataka and another vs. Umesh 3, the

Hon'ble Apex Court held as under:

"16. The principles which govern a disciplinary enquiry are distinct from those which apply to a criminal trial. In a prosecution for an offence punishable under the criminal law,

(2019) 20 SCC 588

(2022) 6 SCC 563 LNA,J

the burden lies on the prosecution to establish the ingredients of the offence beyond reasonable doubt. The accused is entitled to a presumption of innocence. The purpose of a disciplinary proceeding by an employer is to enquire into an allegation of misconduct by an employee which results in a violation of the service rules governing the relationship of employment. Unlike a criminal prosecution where the charge has to be established beyond reasonable doubt, in a disciplinary proceeding, a charge of misconduct has to be established on a preponderance of probabilities. The rules of evidence which apply to a criminal trial are distinct from those which govern a disciplinary enquiry. The acquittal of the accused in a criminal case does not debar the employer from proceeding in the exercise of disciplinary jurisdiction."

15. In Ram Lal v. State of Rajasthan and others 4 , the

Hon'ble Apex Court held as under:

"12. .. 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, if it concludes that allowing the findings in the disciplinary proceedings to stand will be unjust, unfair and oppressive. Each case will turn on its own facts."

(2024) 1 SCC 175 LNA,J

16. From the above decisions of the Hon'ble Apex Court, it is

clear that the acquittal in criminal case cannot ipso facto operate

as a ground for vitiating the finding of misconduct in the

departmental proceedings. However, only exception is where the

departmental proceedings and the criminal case are based on

the same set of facts, evidence, witnesses and circumstances

without there being any variance, in which case, the Court is

entitled to exercise its discretion and grant relief, if it concludes

that allowing the findings in the disciplinary proceedings to

stand will be unjust, unfair and oppressive. However, the same

shall depend on facts, circumstances of each case.