Allowed

V.Venkateswarlu, Chittoor Dist. v. Prl. Secy., Rev. Dept. and 3 Ors.

Andhra Pradesh HC23 Mar 2022WP/38626/2015

Case brief

AI extract

What is this about?

High Court allowed a writ petition seeking to set aside departmental punishment for 'moral turpitude' involving a deceased relative. The Court held that an honourable criminal acquittal on identical facts renders departmental punishment unsustainable, directing reinstatement.

What did the court decide?

Set aside Tribunal order and penalty; treat suspension period (29.09.2000 to 25.12.2001) as duty period with benefits.

V.Venkateswarlu, Chittoor Dist. Vs Prl. Secy… — Service and Employment | Andhra Pradesh HC (2022)

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THE HON’BLE SRI JUSTICE A.V.SESHA SAI AND THE HON’BLE SRI JUSTICE RAVI CHEEMALAPATI

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WRIT PETITION No.38626 OF 2015

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ORDER: ( Per Hon’ble Sri Justice A.V.Sesha Sai )

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Unsuccessful applicant in Original Application No.3152 of 2010 on the file of the Andhra Pradesh Administrative Tribunal at Hyderabad (hereinafter called, ‘the Tribunal’) is the petitioner in the present Writ Petition. Challenge in the present Writ Petition is to the order dated 28.10.2015 passed by the Tribunal, dismissing O.A.No.3152 of 2010. Pursuant to the registration of Crime No.113 of 2000 on the file of II Town Police Station, Madanapalle, against the petitioner herein for the offences alleged under Section 306 I.P.C., the Deputy Inspector General, Registration and Stamps, Kurnool, issued a charge memo dated 30.05.2001, framing the following Articles of Charges against the petitioner:

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"That the said Sri V.Venkateswarlu, Senior Assistant, Sub Registrar’s Office, Madanapalli while functioning as Senior Assistant Sub Registrar’s Office, Madanapalli during the period 2000 was involved as accused in suicidal death vide case Cr.No.113/2000 of II of Town Police Station, Madanapalli.

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He developed illicit intimacy with late K.Jayanthai, W/o.Thokata Siddaiah who got divorced before Lok Adalat. Since then he was having contact with Jayanathi and promised to marry her. The deceased

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Jayanthi used to go to the house of the accused and demanded and requested to marry her on 5-9-2000 evening also she went to the house of the accused and asked him to marry her. He beat, scolded and driven away her from his house saying that go and die, but he could not marry her. From then she suffered a lot mentally about her life and fell down in front of tea shop of Ameet Basha at Madanapalli by consuming poison on 9-9-2000. She was shifted to Government Hospital by him for treatment. Then the case was referred to SVVP Hospital, Tirupathi for better treatment where she died on 26-9-2000 at about 1215 PM. A case was registered in Cr.No.113/2000 at II Town Police Station, Madanapalli and he was arrested on 29-9-2000 at …. Reddy Hospital, Madanapalli. He was produced before First Class Magistrate, Madanapalli on 3-10-2000 and was remanded to Judicial Custody till 17-10-2000. Thus he violated Rule 3(3) of APCS (Conduct) Rules, 1964.

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Basis of the charges:-

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F.I.R.No.113/2000 dt.29.9.2000 of II Town Police Station, Madanapalli. Copy of complaint of Smt. K.Amaravathi W/o. late K.Seshaiah and True copy of Remand Report of Sub Inspector of Police. II Town Police Station Madanapalli as CA.No.3724 of 2000 issued by Addl. Dist. Judge Court, Madanapalli wherein it is noted that he was remanded to Judicial Custody till 17-10-2000.

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Article-II

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That the said Sri V.Venkateswarlu, Senior Assistant, Sub Registrar’s Office, Madanapalli while functioning as Senior Assistant at Sub Registrar’s Office,

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Madanapalli during the year 2000 was involved in a case of moral turpitude having developed illicit intimacy with late K. Jayanthi a resident of Madanapalli torcing her to commit suicide by consuming poison due to his refusal to marry her. Thus he violated Rule 3(2) of APCS (Conduct) Rules, 1964.

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Basis of the charge:

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F.I.R. No.113/2000 dt.29.9.2000 of II town Police Station, Madanapalli, copy of complaint of Smt. K.Amaravathi, W/o. Late K.Seshaiah and true copy of Remand Report of Sub Inspector of Police II Town Police Station, Madanapalli as C.A.No.3724/2000 issued by Addl. Dist. Judge Court, Madanapalli wherein it is noted that he was remanded to Judicial Custody on 17.10.2000."

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In response to the same, the petitioner herein submitted an explanation on 21.06.2001. Thereafter, the Disciplinary Authority appointed Enquiry Officer and the said Enquiry Officer, after holding enquiry, submitted a report dated 10.04.2003, holding the charges as proved. Thereafter, after issuing show cause notice dated 22.04.2003 and after receipt of the explanation from the petitioner dated 28.05.2003, the Disciplinary Authority/respondent No.3 herein, vide proceedings No.A/3489/2000 dated 14.08.2003, inflicted on the petitioner the penalty of stoppage of annual grade increment of the petitioner for three years without cumulative effect. Thereafter,

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the appellate and the revisional authorities also confirmed the said order of penalty on 08.08.2005 and 02.02.2010. In the above background, by invoking the provisions of Section 19 of the Administrative Tribunals Act, 1985, the petitioner herein filed O.A.No.3152 of 2010 on the file of the Tribunal. The Tribunal, by way of an order dated 28.10.2015, dismissed the said Original Application. Assailing the validity and the legal sustainability of the said order passed by the Tribunal, the present Writ Petition came to be instituted.

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A counter affidavit is filed by the respondents, denying the allegations and the averments in the affidavit filed in support of the Writ Petition and in the direction of justifying the impugned orders.

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Heard Sri K.G.Krishna Murthy, learned Senior Counsel, representing Sri K.Rama Mohan, learned counsel for the petitioner, and Sri N.Ashwatha Narayana, learned Government Pleader for Services-I for the respondents.

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Learned Senior Counsel, Sri K.G.Krishna Murthy, contends that the order passed by the Tribunal is highly erroneous, contrary to law and opposed to the very spirit and object of the provisions of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 and the Fundamental Rules. It is further submitted by the learned

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Senior Counsel that the Tribunal grossly erred in not taking into consideration the principles laid down by the Hon’ble Supreme Court in the judgment cited on behalf of the applicant. It is further argued by the learned Senior Counsel that since the evidence and the witnesses in the departmental proceedings and the criminal case are the same and as the very basis for the respondents to hold the departmental proceedings is the charge in the criminal case, the Tribunal ought to have allowed the Original Application. It is eventually argued by the learned Senior Counsel that since the petitioner herein was honourably acquitted by the Sessions Court, the Tribunal should have set aside the orders of punishment. It is further submitted by the learned Senior Counsel that in view of the judgment of the Sessions Court, acquitting the petitioner honourably, the orders of punishment are liable to be set aside.

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In support of his submissions and contentions, learned Senior Counsel, appearing for the petitioner, places reliance on the following judgments:

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1. G.M.tank v. State of Gujarat and another¹ .

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1. Commissioner of Police, New Delhi and another v. Mehar Singh² .

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On the contrary, Sri N.Ashwatha Narayana, learned Government Pleader for Services-I, representing the respondents, submits that since the respondents herein inflicted punishment

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1 (2006) 5 SCC 446

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2 (2013) 7 SCC 685

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on the petitioner on 14.08.2003, i.e., much prior to the acquittal by the learned Sessions Judge and as the scope of enquiry before the Criminal Court and the departmental proceedings is entirely different and distinct, the Tribunal is perfectly justified in declining to interfere with the orders of punishment.

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In the above background, now the issues which this

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Court is called upon to answer in the present Writ Petition are:

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(1) Whether the impugned order passed by the Tribunal, confirming the order of punishment is sustainable and tenable?

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(2) Whether the order of the Tribunal warrants any interference of this Court under Article 226 of the Constitution of India?

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The information available before this Court reveals that obviously on the basis of registration of crime against the petitioner for the alleged offence punishable under Section 306 I.P.C., the department framed the charges against the petitioner. After submission of explanation to the said articles of charges by the petitioner on 21.06.2001, the Enquiry Officer was appointed and he submitted a report, stating that the charges against the petitioner stood proved. After issuing show cause notice, enclosing a copy of the enquiry report, the Disciplinary Authority – Deputy Inspector General of Registration and Stamps, Kurnool, vide proceedings dated 14.08.2003, inflicted on the petitioner the

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punishment of stoppage of annual grade increment for three years without cumulative effect.

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It is significant to note that the criminal prosecution launched against the petitioner herein, vide Sessions Case No.58 of 2002 on the file of the Court of the Sessions Judge, Chittoor Division at Madanapalli, ended in acquittal on 12.02.2007. In the above background, the present Original Application came to be filed by the petitioner-applicant before the Andhra Pradesh Administrative Tribunal. The Tribunal, vide the impugned order dated 28.10.2015, dismissed the said Original Application, precisely, on the ground that the applicant-petitioner was acquitted as the prosecution failed to prove his guilt beyond reasonable doubt and that there was no honourable acquittal. The Tribunal also declined to take into consideration the judgment rendered by the Hon’bnle Apex Court in G.M.tank’s case (1 supra). In this context, it may be appropriate to refer to the principles laid down by the Hon’ble Apex Court in the judgments cited by the learned Senior Counsel in support of the case of the petitioner.

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In G.M.tank’s case (1 supra), the Hon’ble Apex Court, at paragraph Nos.15 and 16, held as follows:

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"15. The judgments relied on by the learned counsel appearing for the respondents are not distinguishable on facts and on law. In this case, the departmental

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proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.

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In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved

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between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony's case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."

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In the instant case, a perusal of the report of the Enquiry Officer dated 10.04.2003 discloses, in clear and vivid terms, that during the course of departmental enquiry, as many as 5 witnesses were examined to prove the guilt of the petitioner. It is also clear from a reading of the said enquiry report that the Enquiry Officer, for the purpose of arriving at the conclusion against the petitioner, relied upon the depositions of Smt. K.Amaravathi and Sri K.V.Penchal Kumar, who are the mother and brother of the deceased. It is also clear from the said report that the Enquiry Officer categorically recorded that the other witnesses were not aware of anything with regard to the case.

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Coming to the judgment rendered by the learned Sessions Judge –– The appendix of evidence shows that the said Smt. K.Amaravathi and Sri K.V.Penchal Kumar, who are the mother and brother of the deceased, were examined as P.Ws.1 and 4 respectively, apart from other witnesses. In view of the

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above factual aspects, this Court is of the opinion that the principle laid down by the Hon’ble Apex Court in G.M.tank’s case (1 supra) is squarely applicable to the present case.

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Coming to the observation of the learned Tribunal that the acquittal of the petitioner was not honourable acquittal and the same was because of failure on the part of the prosecution to prove the guilt of the applicant-petitioner beyond reasonable doubt –– it is pertinent to refer to the judgment of the Hon’ble Apex Court in Mehar Singh’s case (2 supra). In the said judgment, the Hon’ble Apex Court, while considering the phrase ‘honourable acquittal’, held in the following manner at paragraph No.25:

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"25. The expression ‘honourable acquittal’ was considered by this Court in S. Samuthiram. In that case this Court was concerned with a situation where disciplinary proceedings were initiated against a police officer. Criminal case was pending against him under Section 509 of the IPC and under Section 4 of the Eveteasing Act. He was acquitted in that case because of the non-examination of key witnesses. There was a serious flaw in the conduct of the criminal case. Two material witnesses turned hostile. Referring to the judgment of this Court in Management of Reserve Bank of India, New Delhi v. Bhopal Singh Panchal, where in somewhat similar fact situation, this Court upheld a bank’s action of refusing to reinstate an employee in service on the ground that in the criminal case he was acquitted by giving him benefit of doubt and, therefore, it was not an honourable acquittal, this Court held that the High Court was not justified in

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setting aside the punishment imposed in departmental proceedings. This Court observed that the expressions ‘honourable acquittal’, ‘acquitted of blame’ and ‘fully exonerated’ are unknown to the Criminal Procedure Code or the Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression ‘honourably acquitted’. This Court expressed that when the accused is acquitted after full consideration of prosecution case and the prosecution miserably fails to prove the charges leveled against the accused, it can possibly be said that the accused was honourably acquitted."

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In view of the above legal position, the finding of the Tribunal that the acquittal of the petitioner was not honourable acquittal and was due to the failure on the part of the prosecution to prove the guilt of the accused beyond reasonable doubt cannot be sustained. In fact, the learned Sessions Judge in Sessions Case No.58 of 2002, categorically recorded a finding that the evidence on record was no way helpful to the case of the prosecution in incriminating the accused to the crime and that the prosecution failed to prove the guilt of the accused beyond all reasonable doubt. It is definitely not a case of extension of benefit to the petitioner, having regard to the contents of the judgment rendered by the learned Sessions Judge. In these circumstances, this Court is of the view that the conclusions arrived at by the Tribunal are highly erroneous and contrary to law laid down by the Hon’ble Apex Court. Therefore, the order of

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the Tribunal, confirming the orders of punishment is liable to be set aside.

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For the aforesaid reasons, this Writ Petition is allowed, setting aside the order dated 28.10.2015 passed by the Andhra Pradesh Administrative Tribunal in O.A.No.3152 of 2010 and the order of the punishment passed by respondent No.3, vide proceedings No.A/3489/2000 dated 14.08.2003, and also the orders of the Appellate and Revisional Authorities and, consequently, the respondents are directed to treat the period of suspension of the petitioner herein, i.e., from 29.09.2000 to 25.12.2001 as duty period with all consequential benefits. There shall be no order as to costs of the Writ Petition.

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As a sequel, interlocutory applications pending, if any, in

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this Writ Petition shall stand closed.

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___________________ A.V.SESHA SAI, J

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___________________________ RAVI CHEEMALAPATI, J

Date: 23.03.2022

siva

THE HON’BLE SRI JUSTICE A.V.SESHA SAI AND THE HON’BLE SRI JUSTICE RAVI CHEEMALAPATI

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WRIT PETITION No.38626 OF 2015

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Date: 23.03.2022

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siva

V.Venkateswarlu, Chittoor Dist. v. Prl. Secy., Rev. Dept. and 3 Ors.

Case brief

What is this about?

What did the court decide?

V.Venkateswarlu, Chittoor Dist. v. Prl. Secy., Rev. Dept. and 3 Ors.

Case brief

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