Telangana High Court
N. Srisailam Died vs The Government Of Andhra Pradesh Rep.By ... on 21 January, 2025
THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
W.P(TR).NO. 135 OF 2017
ORDER:
In this writ petition, the petitioner is challenging the order
of imposition of penalty of withholding of entire pension and
Gratuity permanently of the deceased employee vide
G.O.Ms.No.51 Transport, Roads and Buildings (VIG) Department
dated 24.05.2012 as illegal, arbitrary and unconstitutional and
also as contrary to the judicial pronouncements to the effect
that the departmental enquiry could not have been conducted
on the very same set of charges after acquittal of similar charges
by the Criminal court and consequently to set aside the same
and direct the respondent No.1 to release all the terminal
benefits i.e., service pension Death cum retirement Gratuity,
encashment of E.L., funeral charges, family pension w.e.f.
07.01.2015 onwards 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 Sri N. Srisailam was initially
appointed in A.P.State Electricity Board as a Helper in the year
1970. Thereafter, he claims to have discontinued his
employment in the then Electricity Board and got his name
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registered in the employment exchange and his name was
sponsored by the employment exchange for appointment as LDC
and he was appointed as LDC with the respondents in the year
1978. It is submitted that subsequently, he was promoted to
various posts and ultimately he was working as Deputy
Executive Engineer (R&B), NH Sub Division, Sadasivpet, Medak
District. When a news item was published in the newspaper that
the petitioner was working in the two places i.e., in the A.P.State
Electricity Board and also in the Government Service for the
past twenty two years. In view of the said report, a criminal case
i.e., CC.No.146/2002, was registered against the petitioner
before the Judicial First Class Magistrate, Tandur, Rangareddy
District and disciplinary proceedings were also initiated against
him by the respondent organization. It was alleged that the
petitioner was relieved from Sadasivpet and he submitted his
joining report before the Executive Engineer (R&B) Division,
Siddipet on 09.07.2001, but the petitioner was not allowed to
work. It is further submitted that the petitioner submitted his
joining report again on 25.07.2001 and obtained an
acknowledgement and thereafter, vide proceedings dated
16.08.2001, the petitioner was kept under suspension, but he
was not paid any subsistence allowance and vide memo dated
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16.08.2002, it was proposed to hold an enquiry against the
petitioner and a charge sheet was served against the petitioner
and the petitioner claims to have submitted his written
explanation on 23.09.2002 and thereafter, the departmental
enquiry was conducted. It is submitted that even before an
enquiry was conducted, the Criminal Court vide judgment dated
22.09.2005 acquitted him from all charges and the same was
brought to the notice of the department, but the departmental
enquiry was concluded holding the charges as proved against
the petitioner and the Disciplinary authority has imposed the
punishment of penalty of withholding of the entire pension and
gratuity permanently. The petitioner had attained the age of
superannuation on 30.06.2007. It is submitted that the
petitioner has made several representations for re-consideration
of his case in the light of the acquittal in the Criminal Case and
that there was no evidence whatsoever to prove that the
petitioner has worked in both departments simultaneously.
However, the same was not considered and therefore, the
petitioner filed O.A.No.9582 of 2012 before the Tribunal and on
abolition of the Tribunal, the same has been transferred to this
Court and it is renumbered as W.P.(Tr).No.135 of 2017.
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3. Learned counsel for the petitioners submitted that
the petitioner was initially appointed as a Helper in the
Electricity Department in the year 1970 and thereafter, he was
appointed in the Roads and Building Department in 1978 and
worked thereunder up to the age of retirement i.e., on
30.06.2007. It is submitted that the allegation that the
petitioner worked in two posts for 22 years is absolutely false
and baseless. He submitted that the distance between these two
places is eighty kilometers and it was humanly impossible for a
person to be travelling between those two places and working in
dual roles for a period of twenty two years. It is further
submitted that all these facts and the evidence produced by the
respondents have been considered by the Criminal Court to hold
that there was no evidence that the petitioner has worked in
both places at the same time for 22 years. It is further
submitted that without taking the evidence considered by the
Criminal Court into consideration, the disciplinary proceedings
have concluded holding that the petitioner is guilty and have
imposed the punishment of the penalty of withholding the entire
pension and gratuity permanently. It is submitted that even
during the course of suspension, the petitioner was never paid
the subsistence allowance, which is in violation of Service Rules
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as well as the principles of natural justice and for this reason
also the proceedings are vitiated.
4. Learned counsel for the petitioners placed reliance
upon the decision of this Court in W.P.No.14633 of 2020 in
support of his contention that where departmental proceedings
have been initiated/instituted after the lapse of four years from
the date on which the event of misconduct had taken place,
such proceedings are not sustainable. He further placed reliance
upon the judgment of the Hon'ble Supreme Court in the case of
Capt.M.Paul Anthony Vs. Bharat Gold Mines Limited and
Another 1, for the proposition that when a person is acquitted of
the Criminal Case and on the very same set of facts if the
departmental proceedings were also initiated, then the judgment
in the Criminal Case should be considered while disposing of the
departmental proceedings.
5. Learned counsel for the petitioners has also filed the
written arguments in support of his oral arguments.
6. Learned Government Pleader for Services-I, on the
other hand, supported the contentions raised in the counter
affidavit filed by the respondent No.3 stating that the details of
1 (1993) 3 SCC 679
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the petitioner are recorded in the service books of both the
department and on comparison of the service books of the
petitioner from the Electricity Department and also from the
R&B Department, it was observed that the petitioner was
appointed as a Helper with the Electricity Department w.e.f.
08.04.1970 and his services were regularized on 23.05.1981 and
he was also promoted as a Bill Collector w.e.f.23.05.1981 and
was dismissed from service w.e.f. 28.01.2004. As regards his
employment with R&B Department, the petitioner was appointed
as a LDC/Junior Assistant w.e.f. 03.04.1978 and his services
were regularized w.e.f. 03.04.1980 and was promoted as Senior
Assistant w.e.f. 02.01.1991 and has attained the age of
superannuation on 30.06.2007 while he was still under
suspension. It is also observed that he was granted automatic
advancement scheme of his G.P., of Revenue Cashier and as
SGP Junior Assistant, SGP Senior Assistant. It was also
observed that the signatures of both the service books were
tallied vide Andhra Pradesh Forensic Science Laboratories,
Hyderabad, reprot vide DOC/523/2001, dated 29.11.2001. It
was thus, proved beyond reasonable doubt that the petitioner
has worked in both the departments at the same time. The
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relevant service books were also filed along with the counter
affidavit.
7. The Electricity Department was also impleaded as a
party respondent and the learned standing counsel has also
filed a counter affidavit stating that the petitioner was appointed
and worked as a Helper in the Electricity Department and on
coming to know about his dual employment, he was dismissed
from service in the year 2004. Therefore, according to him, the
petitioner seems to be the employee of the Electricity Board only
till 2004.
8. Learned Government Pleader has placed reliance
upon the following two judgments to bring out the distinction
between the Disciplinary Proceedings and the Criminal
Proceedings and submitted that disciplinary proceedings are
independent of criminal proceedings and the outcome of
criminal proceedings may not affect the disciplinary
proceedings.
(1) State Bank of India and Others Vs. P.Zadenga 2;
(2) B.Yellaiah Vs. State Bank of India, Hyderabad and
Others 3.
2 (2023) 10 SCC 675
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9. Having regard to the rival contentions and the
material on record, this Court finds that it is not in dispute that
the petitioner was initially appointed as a helper in the
Electricity Department and subsequently, as a Junior Assistant
in the R&B Department. Though the petitioner claims to have
discontinued his services on being appointed in the R&B
department, his service book mentions otherwise. In the service
book of the Electricity Department, it is mentioned that his
services were regularized in the year 1981 and he continued in
service till the date of dismissal i.e., in the year 2004. Though
the contention of the learned counsel of the petitioner that the
distance between both the places was almost 80 kms., and that
it was humanly impossible for the petitioner to travel between
both the destinations every day in the morning as well as in the
evening, this Court is of the opinion that it may be a case of
impersonation and not attending by himself. It was not the
period during which the Biometrics was available and the
petitioner's attendance was marked through the same every day.
Though in the Criminal Court, the petitioner has been acquitted
on the ground that the respondents have failed to prove that the
petitioner has worked in both the departments and has thus
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cheated the department, this Court is of the opinion that in the
disciplinary proceedings the preponderance of the probabilities
play a major role. The contention of the respondents was that
the petitioner worked in both the departments simultaneously.
Looking at the scenario during which the petitioner is alleged to
have worked in two places, there were not enough vehicles to
enable the petitioner to travel back and forth on the very same
day without the people noticing or observing it. Therefore, if it is
to be presumed that the petitioner was in service of the
Electricity Department till 2004, then the only presumption to
be drawn is that some other person must have impersonated the
petitioner in the said place. However, the same has not been
brought on the record and therefore, it cannot be presumed so.
In the criminal case, the burden is on the respondents to prove
the guilt of the accused. Similarly, in the disciplinary
proceedings also, burden is on the department to prove that the
petitioner was involved in the offence of dual employment. As
seen from the disciplinary authority orders, it has been held that
the petitioner has failed to prove that he has not worked in both
places at the same time. This is shifting the burden of proof on
to the accused petitioner, which is against the principles of
natural justice. Further, it is not the contention of the Electricity
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Department that the petitioner has been paid salary during the
period when he was working with the R&B Department. So the
only inference that can be drawn is that the petitioner has
discontinued his services in the Electricity Department without
any intimation and without noticing the same, the said
department has not only promoted him but has continued him
upto the date of dismissal. It is evident that the petitioner has
worked in the R&B Department and has drawn salary therefrom
but there is no averment by the Electricity Department of any
payment of salary to the petitioner throughout the period.
Therefore, this Court deems it fit and proper to direct the
respondent No.2 to reconsider the case of the petitioner in the
light of the judgment of the Criminal Court and grant his legal
heirs the family pension in accordance with relevant rules.
10. With these directions, the writ petition is disposed
of. There shall be no order as to costs.
11. Miscellaneous petitions, if any, pending in this writ
petition, shall stand closed.
____________________________
JUSTICE T.MADHAVI DEVI
Date: 21.01.2025
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THE HONOURABLE SMT JUSTICE T.MADHAVI DEVI
W.P(TR).NO. 135 OF 2017
Dated: 21.01.2025
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