Telangana High Court

B. Venkatesam vs The Government Of A.P. on 22 January, 2024

     HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

               WRIT PETITION (TR) No.1741 of 2017
ORDER:

This writ petition has been filed by the petitioner

seeking the following relief:

"... to declare the action of the respondents in conducting enquiry in departmental proceedings pending against the applicant vide Proceedings PR.No.82/2012 (No.L&O/B7/180/2012 dated

02.06.2012 though the criminal case is pending in Crime No.2/2012 filed under Section 420 r/w 511 IPC on the file of the Court of X Addl. Chief Metropolitan Magistrate, Secunderabad, as illegal, arbitrary and also contrary to the Orders in O.A.No.924/2014, dated 21.02.2014 and W.P.No.15173/2013 dated 04.06.2013 and consequently, direct the respondents not to proceed with the departmental enquiry wherein issued vide Proceedings PR No.82/2012 (No. L&O/B7/180/2012, dated 02.06.2012 issued by the 2nd respondent...."

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

are that the petitioner viz., B.Venkatesam, was appointed as

a Police Constable on 12.03.1982 and subsequently,

promoted as Head Constable in the year 2008. While so, on

22.01.2012, the Police, Market P.S., Hyderabad registered a

case in Crime No.2/2022 under Section 420 r/w 511 of IPC LNA,J

against the petitioner, investigated into the same and a

charge sheet was filed.

2.1. It is contended that in view of involvement in the said

criminal case, the Commissioner of Police (2nd respondent),

placed the petitioner under suspension vide D.O.No.631,

dated 30.01.2012 from the date of his arrest i.e., 23.01.2012

and subsequently, petitioner was reinstated into service and

he was discharging his duties. While matter stood thus, the

2nd respondent issued impugned memorandum dated

02.06.2012 by framing charge against the petitioner for

conducting departmental enquiry.

2.2. The petitioner submitted statement of defense on

24.12.2012 denying the charges and contended that police

falsely implicated him in criminal case and the same is

pending adjudication before the criminal court. It is

contended that while criminal proceedings are going on, the

departmental enquiry should be stopped and no parallel

departmental enquiry should be conducted unless the set of

circumstances and witnesses are different from that of

criminal case. In the present case, the set of evidence, LNA,J

witnesses and documents to be relied on the departmental

proceedings are exactly the same as in criminal case and

therefore, the evidence is same to be relied in the

departmental proceedings. Hence, the present writ petition.

2.3. The A.P. Administrative Tribunal passed the interim

orders dated 28.02.2014 directing the respondents not to

proceed with the departmental enquiry issued in proceedings

dated 02.06.2012 by the 2nd respondent till further orders.

3. The respondents filed vacate petition vide V.M.A.No.475

of 2014 in O.A.No.1427 of 2014, contending that on remand

of the petitioner to judicial custody, he was placed under

suspension vide order dated 30.01.2012 in terms of Rule

8(2)(a) of A.P.Civil Services (Classification, Control & Appeal)

Rules, 1991 (for short, 'the Rules, 1991') pending disciplinary

action against him. An Article of charge was issued to the

petitioner calling for his written explanation and petitioner

submitted his written explanation dated 24.12.2012. An oral

enquiry was ordered against the petitioner by appointing

Detective Inspector, SR Nagar P.S., Hyderabad, as Inquiring LNA,J

Authority to enquire into the lapses committed by petitioner

and the same is under process.

3.1. It is contended that as per the interim orders, the

inquiring authority was instructed not to proceed further with

the enquiry until further orders. It is contended that the

decision taken in criminal case does not have the effect of

nullifying the decision taken in the departmental

proceedings; that they operate in different areas of

consideration and therefore, it does not amount to double

jeopardy; that while in the departmental proceedings, the

standard of proof is one of preponderance of the probabilities

and whereas, in a criminal case, the charge has to be proved

beyond reasonable doubt.

3.2. In view of the facts, it is contended that interim orders

may be vacated as it is devoid of merits.

4. Heard Sri S.Ajay Kumar, the learned counsel for the

petitioner and Sri M.V.Rama Rao, the learned Special

Government Pleader appearing for the respondents.

5. Learned counsel for the petitioner submitted that

petitioner retired from service on 31.07.2017 on attaining the LNA,J

age of superannuation, but he was sanctioned only

provisional pension in view of pendency of criminal case. He

further submitted that petitioner was acquitted in criminal

case by the competent criminal Court on 07.06.2022 and

therefore, petitioner is entitled to receive his entire pension

and all pensionary benefits including gratuity, commutation

of earned leave including arrears of pension. He further

submitted that after acquittal in criminal case, petitioner

submitted a representation on 01.08.2023 requesting the 2nd

respondent to settle the pensionary benefits by enclosing the

copy of the judgment in criminal case on 07.06.2022,

however, no orders have been passed by the respondents. 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].

6. On the other hand, the learned Special Standing

Counsel 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 LNA,J

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

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 vacate the interim

orders and dismiss the O.A. as it is devoid of merits.

Consideration:

7. A perusal of the record discloses that petitioner was

appointed as Constable on 12.03.1982 and promoted as Head

Constable. While working as Head Constable, he was involved

in criminal case vide CC No.142 of 2017 and the competent

authority also initiated departmental proceedings against

him. The Commissioner of Police (2nd respondent), placed the

petitioner under suspension vide D.O.No.631, dated

30.01.2012 from the date of his arrest i.e., 23.01.2012 and

subsequently, petitioner was reinstated into service and he LNA,J

was discharging his duties. The Tribunal by order dated

28.02.2014 granted interim relief directing the respondents

not to proceed with the departmental enquiry issued in

proceedings dated 02.06.2012 by the 2nd respondent till

further orders. It appears that petitioner had retired

from service on 31.07.2017 on attaining the age of

superannuation, however, he was sanctioned only provisional

pension in view of pendency of criminal case.

8. Further, the criminal case filed against the petitioner

had ended in acquittal vide judgment dated 07.06.2022 by

the XXII Addl.Chief Metropolitan Magistrate, Secunderabad.

It is contended that the facts, evidence and charges are same

in both criminal case as well as the departmental proceedings

and therefore, respondents cannot proceed further with the

departmental proceedings against the petitioner. Learned

counsel for the petitioner relied upon the decision of the

Hon'ble Apex Court in G.M.Tank (supra) in support of his

contention.

LNA,J

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

another 1, 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."

10. In State of Karnataka and another vs. Umesh 2, 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, 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

(2019) 20 SCC 588

(2022) 6 SCC 563 LNA,J

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."

11. In Ram Lal v. State of Rajasthan and others 3 , 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."

12. 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

(2024) 1 SCC 175 LNA,J

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.