K.Nageswar Rao Vs The State of Telangana

K.Nageswar Rao, S/o Late Venkaiah, Aged about 48 years, Occ. lnspector of Police, (Dismissed from Service) Rlo Flat No.501, Padmavathi Nilayam Apartments, Green Hills Colony, Kothapet, Ranga Reddy District.

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...PETITIONER

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AND

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The State of Telangana, Rep. by its Principal Secretary, Home Department, Secretariat, Hyderabad

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The Director General of Police, Lakdikapul, Hyderabad

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The lnspector General of Police, ln-charge West Zone. Hyderabad

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The Commissioner of Police, Hyderabad City.

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...RESPONDENTS

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Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, Order or Direction particularly one in the nature of Writ of Certiorari calling for the record of the impugned appellate order Proceedings No.58/T3/2023 of the 2nd Respondent dated 2BtO6l2O23 communicated by the 4th Respondent on 1710812023 vide D.O.No.7835 No.L&OlBBl225l2O22-23 dated 2710712023 confirming the order of dismissal from service daled 29.09.2022 passed by the 3'd Respondent vide Rc.No.640/PR-OOMZ(MZ-|I)2022 RO.No.255/2022 invoking 25(ii) of Telangana State Civil Services (CC and A) Rules, 1991 and Article 31 1(2)(b) of the Constitution of lndia as illegal, without

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diction, outside the scope of Article 31 1(2) (b) of the Constitution of lndia read with Rule 25(ii) of Telangana State Civil Services (CC and A) Rules, 1991 and in violation of settled law as laid down by the Hon'ble Supreme Court in Union of lndia Vs. Tulsiram Patel reported in (1985) 3 SCC 398 and Satyavir Singh and others Vs. Union of lndia and others reported in 1985 (4) SCC 252 and W.P.No.12353 of 2011 dt. 1411012016 and consequently quash the same by directing the Respondents to reinstate the Petitioner with all consequential benefits.

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lA NO: 1 OF 2023

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to suspend impugned appellate order Proceedings No.5B/T312023 of the 2nd Respondent dated 28.06.2023 confirming the order of dismissal from service dated 29.09.2022 passed by the 3rd Respondent vide Rc. No.640/PR-06AIV2(MZll)2022 RO.No.25512022.

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Counsel for the Petitioner: SRI M. SURENDER RAO, SENIOR COUNSEL REPRESENTING SRICH. VENKAT RAMAN

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Counsel for the Respondents: SRI M.V. RAMA RAO, SPECIAL GOVERNMENT PLEADER FOR HOME

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The Court made the following: ORDER

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THE HON'BLE SRI JUSTICE PULLA KARTHIK

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WRIT PETITION No.32468 ot 2023

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ORDER:

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Heard Sri M.Surender Rao, learned Senior Counsel representing Sri Ch.Venkat Raman, learned counsel for the petitioners, and learned Special Government pleader for Home, appearing for the respondents.

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This Writ Petition, under Article 226 of the Constitution of India, is filed seeking the following reliet

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"...to issue a Writ, order or direction particularly one in the nature of Wdt of Certiorari calling for the records of the impugned appellate order Proceedings No.58/T3/2023 of the 2'd respondent, dated, 2g.06.2023 communicated by the 4th respondent on 17.08.2O23 vide D.O.No.7g35 No.WO /Ba 12251202223 confirming the order of dismissal from service dated 29.09.2022 passed by the 3.d respondent vide Rc.No.640/pRO6IWZ(MZ-I|)2O22 RO.No.255/2O22 invoking 25 (ii) of Telangana State Civil Services (CC&A) Rules, 1991 and Article 31 1 (2) (b) of the Constitution of india, as iltegal, without jurisdiction, outside the scope of Article 311 (2) (b) of the Constitution of India read with Rule 25 (II) of Telangana State Civil Services (CC&A) Rules, 1991 and in violation of settled law as laid down by the Hon'ble Supreme Court in Union of India v. Tuliram Patel reported in (1985) 3 SCC 398 and Satyavir Singh and others v. Union of India and others reported in 1985 (4) SCC 252 and W.P.No. 12353 of 2011, dated 14.10.2016 and consequentiy quash the same by directing the respondents to reinstate the petition€r with al1 consequential benefits..."

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According to the^{petitioner, he was initiallyappointedas} Police Constable in^{1"t Battalion A.P.S.P. during the year 1994 in} the composite^{State of Andhra Pradesh and after completionof} training, on^{16.07.1995 he was deputedto work in Grey Hounds'} While he was^{working in Grey Hounds, in recogrritionof his} outstanding^{performance, he was given promotion as Head} Constable uide^{G.O.Ms.No.26O, Home (SC.A)Department,dated} 10.09.1998.^{Thereafter,the petitioner was selected as Sub-} Inspector of Police^{(civil) by the State Level Police Recruitment} Board in the^{year 2OO4 inZone-Yl uide proceedings dated} O1.OB.2OO4. Subsequently,^{he was promoted as Inspector of} PoTice ui.de^{proceedings, dated 15.05.2013 and workedas such till} the order of dismissal^{was passed by the InspectorGeneral of} Police I/C, West Zone,^{dated 29.09.2022. It is averred that the} petitioner is the recipient of A.P.^{PoliceSeva Pathakan (2OL+1,} Uthama Seva Pathakam^{(02.06.2020), (85) cash rewards,(33)} GSEs (Good Service^{Entries), (01)MSE (Meritorious ServiceEntry),} (03) Commendations and^{(02) Appreciations.In the year 2OO2, he} was awarded Police^{(AntrikSurakshaSeva)Pathakam, keeping in} view his performance in^{counter insurgency operations. The} petitioner while working as Inspector of^{Police, MarredpallyPolice}

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Station, the Commissioner of Police, Hyderabad City, has issued proceedings in D.O.No.5888/No.L&O/88/225/2022, dated 09.O7.2022, placing him under suspension on the ground that he was involved in a criminal case vide Crime No.875 of 2022 for the offences punishable under Sections 452, 376 (2), 3O7, 448 and 365 of Indian Penal Code and Section 30 of the Arms Act, 1959, on the liie of Vanasthalipuram Police Station, Rachakonda Commissionerate.

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It is the further case of the petitioner that he came to know that the accused in Crime No.270 of 2022, Crime No.32 of 2O1B and Crime No.53 of 2018 have conspired together and falsely implicated the petitioner in the subject crime with a View to damage his service in the department and reputation in the society, to wreak vengeance and as a counter blast. The petitioner came to know that the complainant in all the crimes is in the habit of giving similar complaints. Respondent No.3, without issuing any charge memo or causing any enquiry under the Telalgana State Civil Services (Classification, Control and Appeal) Rules, 1991 (for short, the Ruies, 1991') has issued the impugned order, dated 29.09.2022, dismissing the petitioner from service stating that under Rule 25 (2) Rules, 199i, it is not necessary to

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hold regular enquiry and that the suspension period from L3-o7.2022 till receipt of dismissar order is treated as not on duty.

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5' Aggrieved by the said dismissal order, the petitioner has Iiled an appeal, dated 07.01.2023, before respondent No.2. But, respondent No.2, without considering the same, r,zde proceedings No.58/T3/2023, dated 28.06.2023, confirmed the order of dismissal, dated 29.09.2022 passed by respondent No.3 vide Rc.No.64OlPR-O6 / WZ (MZ-II) 2O22, RO. No .2SS / 2022. Aggrieved by the order passed by respondent No.2, the petitioner is before this Court.

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Learned Senior Counsel appearing for the petitioner has submitted that the ground taken by respondent No.3 in the impugned order of dismissal i.e. it would be impracticabre to conduct an enquiry against the petitioner as the victim would not be coming forward to depose against him by virtue of the stigma she would face in society, appea_rs to be neither a genuine nor a relevant reason to exercise the power under Rule 25 (ii) of the Rules, 199 1 in view of the fact that the Investigating Officer in Crime No.8TS of 2022 has examined the complainant, her husband, brother and severar other witnesses under section 161

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of Cr.P.C. even before passing of dismissal order dated

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29.O9.2022. Learned counsel further submitted that the appellate authority i.e. 2nd respondent also without considering the grounds of .appeal and without conducting any enquiry, has erroneously passed the impugned non-speaking order, dated 28.O6.2023, rejecting appeal filed by the petitioner challenging the dismissal order.

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7 . In support of his contentions, he placed reliance on the decision of the Hon'ble Supreme Court in Satyavir Singh and others v. Union of India and othersr wherein it was held that nature of the power under Article 311 (2) (b) of the Constitution of India is an emergency power that can only be exercised where it is not reasonably practicable to hold enquiry and the said reasons to be recorded in writing for dispensing with such enquiry in order of punishment and that the High Court under Article 226 of the Constitution of India has got power of review over the reasons recorded as to whether the said reasons are genuine or not or relevant or irrelevalt for exercise of such power, whether it is not practicable to hold such enquiry and it is further held that a post decisional enquiry at appellate stage is to be held after the

'^{r985 (4) scc 252}

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situation has become normal and that even the final order passed in appeal is subject to judicial review

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Learned counsel has further submitted that in appeal, respondent No.2 vide proceedings No.SB /T3 /2023, dated 28.06.2023, has conlirmed the dismissal order passed by respondent No. 3 ulde Rc. No.64O / PR-O6 / WZ(MZ-II\2O22 RO.255/ 2022, dated 29.O9.2022, without assigning valid reasons Respondent No.2-appellate authority, without adverting to any objections raised in the appeal, has passed tl.e irnpugned nonspeaking order. Therefore, the impugned order passed by respondent No.2 is non est in the eye of law and in violation of principles of natural justice. Further the power of respondent No.2 vested under Rule 25 (ii) of the Rules, 1991 read with Article 3l I (2) (b) of Constitution of India is an exception where a normal procedure of giving a reasonable opportunity to an employee in the disciplinary enquiry is not reasonably practicable and for reasons to be recorded of his satisfaction to that effect. In the instant case, absolutely there is no factual foundation to dispense with ttre enquiry and the reasons given therefor are not relevant and not germane to exercise the power under Article 311 (2) (b) of the Constitution of India. Respondent No.3 is not the appointing

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authority arrd he is acting as only in-charge and therefore, the order is totaly without jurisdiction. Further the allegations made in the suspension order, dated 09.07.2022, as well as the reasons given for dispensing with the enquiry are contrar5r to the facts within the knowledge of the 3.d respondent as evident from the statements of witnesses including the complainant as well as her husband recorded between O8.O7.2022 to 19.09.2022 in Crime No.875 to 2022 on the frle of P.S. Vanasthalipuram, Rachakonda Commissionerate. Therefore, the impugned order is passed on irrelevant reasons and consideration, which are impermissible in law. Further, respondent No.3 has exercised the power vested underRule25(ii) of theRules, 199 lreadwithArticle3ll (2) (b) of the Constitution of India pending criminal case in Crime No.875 of 2022, as if there is a conviction under Article 31 1 (2) (a) of the Constitution of India, which is totally illegal and without jurisdiction.

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Learned senior counsel has further contended that respondent No.2 ought to have seen that even in cases where witnesses could not come forward due to arry terrorizing circumstances, the Honble Supreme Court held that the Disciplinary authority has to conduct a regular enquiry even after

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the order^{of dismissalafter the situation has come to normal.} But, in^{the instantcase, respondent Nos'2 and 3 havenot acted in} accordance^{with Rules, 1991 and therefore,the impugned order of} dismissal^{and appellateorder confirmingthe said dismissal are} illegal,^{without jurisdictionar1d therefore are liable to be set aside.}

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Per^{contra, learned Special GovernmentPleaderfor Home,} appeaitg^{for the respondents has contendedthat on O8'O7'2022} a complaint^{was receivedfrom the victim/complainantby the} Station^{House Officer, VanasthalipuramPolice Station,} Rachakonda^{Commissionerate,stating that in the year 2018,} Crime^{No.53 of 2Ol8 of BegumpetPolice Station and Crime No'32} of 2018^{of MahankaliPoliceStation, were registered against her} husband^{by the Task Force Police and were investigatedby the} petitioner.^{Thereafter,her husband was.hired by the petitioner for} his farm^{house on monthlypayment basis till February, 2O2l'} During^{the said period,the victim was forcibly broughtto the} agricultural^{land of the petitioner, withoutthe knowledge of her} husband.^{On knowing the same,her husband warnedthe} petitioner,^{due to which, the petitioner sent Inspector and Sub-} Inspector^{of Policeto her house,took her husbandto Task Force} Office,^{Hyderabad,beat him and took his pictures by placing}

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Ganja packets in his hands and also threatened him to register a false case against him.

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It is further contended that on 06.0T.2022, the petitioner mi.de a WhatsApp call to the complainant and asked her to fulfil his sexual desire using un-parliamentary language. She informed the same to her husband, who was at his native p1ace. Further, on 07.O7.2022, the petitioner has trespassed into her house, beat her and forcibly exploited her sexually. Meantime, the husband of the complainant came and beat the petitioner, for which, the petitioner threatened herself and her husband to leave Hyderabad, otherwise to register a brothel case against them and took them away in his vehicle towards Ibrahimpatnam, where they met with an accident at lbrahimpatnam lake in the early hours on O8.O7.2022, which is the subject matter of Crime No.2g2 of 2022 registered under section2Tg oflPC. Basing on the contents ofthe complaint of the victim, a case in Crime No.g75 of 2022 was registered under Sections 452, 326 (2),3OT,449 and 365 IpC and Section 30 of the Arms Act, 1959, against the petitioner on the file of vanasthalipuram Police Station and investigated into. Learned Government Pleader has strenuously contended that the petitioner has committed grave reprehensible acts ald misconduct, thereby

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involving in the aforesaid crime for exhibiting criminar misconduct by sexually assaulting the complainant, who is wife of an accused in two crimes. Therefore, it is a case of grave moral turpitude on the part of the petitioner in forcing a woman for satisfying his lust and threatening to book a false case against her husband. The nature of offences committed by the petitioner speaks about his Criminal tendency and moral turpitude. police is a disciplined force and people repose great faith and confidence in it. It shoulders great responsibility of maintaining law and order and public order in the societ5r and providing safety and security to the citizens. As such, it must be worthy of that confidence and persons working in police force must be of utmost impeccable character, manners, rectitude and integrity to provide protection to the people especially women in their hour of need. persons of such immoral behaviour and criminal nature will not only pose a great threat to the discipline of police force, but also pull down the very fabric of societ5z causing great harm to the people especially women. Hence, continuation of the petitioner in the police department wili be detrimental to the department as well as general public. In fact, the petitioner has exhibited grave misconduct, unbecoming of a Government servant and

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unacceptable in the society, which warrants deterrent disciplinary action to maintain discipline in the force and keep its morar to the expectations of people. In view of the serious and sensitive nature of offence committed by him, such al enquiry would be impractical as the victim would not be forthcoming to depose against him by virtue of the stigma she would face in the society and it was opined that it will not be reasonably practicable to hold an enquiry against the delinquent. Therefore, respondent No.3 was constrained to invoke the provisions of Rule 25 (ii) of the Rules, 1991 read with Article 311 (2) (b) of the Constitution of India and imposed punishment of dismissal from service and the same was confirmed by the appellate authorit5r, vide order, dated 28.06.2023, in accordance with the Rules, 1991.

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Further, the arlegations made against the petitioner clearry fall under the purview of Article 3ll (2) (b) of the Constitution of India. In view of grayity of charges framed against the petitioner, the respondents thought that it is not reasonably practicable to conduct regular enquiry. Hence, the respondents have righfly invoked Article 3lL (2) (b) of the Constitution of India and dismissed the petitioner from service and the same was confirmed by the appellate authority in accordance with Rures. Therefore,

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there are no merits in the writ petition and the same may be dismissed. In support of his contentions, reliance has been placed on the Judgments of the Hon'ble Supreme Court in Jaswanti Singh v. State of Punjab and othersz; Reena Rani v. State of Haryana and others3 and Risal Singh v. State of Haryana and othersa.

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This Court has taken note of the submissions made by the respective counsel and perused the material on record.

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L4. Having regard to the submissions made by respective counsel, this Court is of view that in this writ petition the oniy issue to be adjudicated is \rhether in the given facts of the case, the disciplinary authority was justified in invoking Article 31 1 (2) (b) of the Constitution of India'?.

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For better appreciation of the matter, it is necessary to refer Article 31 1 (2) (b) of the Constitution of India as well as relevant portion of Rule 25 of The Telangana State Civil Services (Classification, Control and Appeal) Rules, 1991, which read as under:

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2 ( 1991) I Supreme Court Cases 362

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3 (201,2) lO Supreme Court Cases 215 I (2Ot4) l3 Supreme Court Cases 244

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"311. Disrrissal, relnoval or^{reductlo[ iurank of} Perso[s employed in civil capacities uuder the Union or^a State.( 1) ...

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(2) No such person as aforesaid shall be dismissed or^removed or reduced in rank except after an inquiry in which^{he has beeninformedof} the charges against him and^{givena reasonableopportunity of being heard} in respect of those charges;

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Provided that where it is proposed after such^{inquiry,to impose} upon him any such penalty, such penalty^{may be imposedon the basis of} the evidence adduced during such inquiry and it shall^{not be necessaryto} give such person any opportunity of making representation on^{the penalty} proposed:

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Provided further that this clause shall not applyI4l^... ;or

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l![^{where the authorityempoweredto dismissor remove a} person or to reduce him in rank is satisfied that for^{somereason,to be} recorded by that authority in writing, it is^{not reasonablypracticable to} hold such inquiry; or

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rci..."

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NotwithstaEdlag anything contained in rule^{2O to rule 24-}

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(i)

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(iil where the disciplinary authority is satislied for^{reasons to} be recorded by it in writing that it is not^{reasonablepracticableto holdan} inquiry in the manner^provided in these rules, or

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(ii,

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The disciplinary authority may consider the circumstances^{of the} case and make such orders there on as it deems fit.

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Both the above provisions of law, clearly stipulate that any^such exercise of the special power vested with the disciplinary^authority shall be subject to complying the conditions^{envisagedthereunder'} To be specilic, the Article as well as Rule require {i) satisfaction of th.e disciplinary autLtoitA and⁽ⁱⁱ⁾ recording of reasons in^support of its decision that it is not reasonablg practicable to tnld all enquiry. Without fullilling the said conditions, the disciplinary authority

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cannot exercise its special power vested under the above provisions of la'*, for passing an order imposing the major punishment of dismissal lrom seryice.

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As noticed from the impugned order, trre allegations levelred against the petitioner that ( r ) he has exhibited criminar misconduct by sexually assaulting complainant; (21 he forced the complainant to satisfy his lust otherwise threatening to book a false case against her husband (3) he has violated the restrictions/ condition s in using the weapon allotted to him, are required to be considered a,d decided in a regurar departmental enquiry. Even the in-charge disciplinary authority ought not have assumed, solely based on the complaint that too made by wife of an accused in two criminal cases, that the petitioner is guilty of the allegations levelled against him. Further, the reasons assigned in the impugned order to invoke the provision under Article 311(2) (b) of constitution of India read with Rule 25(21 of the Rules, 199 1, are also not satisfactory. The disciptinary authority can take extreme step by exercising the power vested under Article 311(2)(b) of the Constitution of India only in exceptional circumstances i.e., in case the petitioner does not

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cooperate during course of enquiry and in case the whereabouts of petitioner a_re not traceable/impossible to trace out.

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L7. In similar circumstances, in Jaswaat Singh's case (supra),

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the Hon'ble Supreme Court has held as under:

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"...The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the rpse diit of tine concerned authority. When the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer..."

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18' similarly, in v.Bhushanam v. Divisionar security Commissioner, Railway protection Force, Vijayawadas, this Court held that the action of the disciplinaqr authority in dispensing with the departmental enquiry against petitioner therein was totally unjustified arrd illegal. In the said case, a charge was lramed and thereafter without conducting enquiry, the special provision was resorted to dismiss the employee from servlce.

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Suffice it to record that repeatedly, the Hon,ble Supreme Court has laid down the broad parameters w.ithin which powers under Article 311(2) (b) of the constitution of India can be invoked. But, it is unfortunate to note that despite such clear s 2003 (3) ALD rs0

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judicial pronouncements, the disciplinary^{authorities continue to} exercise those^{powersunjustifiably, thereby deprivingtheir} officials fair opportunity^{to defend themselves.}

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2C.. In the present^{case, as mentioned above, the allegations,on} the basis whereof services^{of the petitioner weresummarily} terminated by way^{of dismissalorder,are that petitionerhad} sexually assaulted^{the complainant and threatenedto book a false} case against her husband.^{The only reason recordedby} disciplinary authority^{while passing impugnedorder of dismissal} is that it would be impracticable^{to conduct enquiry againstthe} petitioner as the victim is not^{coming forward to depose against} him by virtue of the^{stigma she wouldface in society, #hich} appears to be frivolous. It^{is evident from the record that the} complainant^gave her^{statement beforethe investigatingofficer in} Crime No.875 to 2022 on^{the Iile of P.S. Vanasthalipuram,} Rachakonda Commissionerate^{onO7.O7.2O22 whereas the} impugned dismissal order^{is passedon O9.O7'2022'If that be so,} what prevented the complainant^{to appearbeforethe Disciplinary} Authority to depose evidence when she^{comfortablygave} statement before investigating ofhcer in another^{case, which}

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reasons are^{not forthcomingandare only best known to the} disciplinary /^{appellateauthority.}

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ZL.^{For the aforementioned reasonsand in view of the settled} principles^{of law laid down by the Hon'lcleSupremeCourt in the} above^{referred judgments, this Court holds that the impugned} dismissal^{order is passedwithoutassigningjusti{iablereasons for} dispensing^{with regular enquiry. Hence the sarne isnot} sustainable^{under the law and therefore liable to be set aside'}

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Accordingly,^{the Writ Petition is allowed and the impugned} appellate .^{order uide proceedingsNo.58/T3/2023,dated} 28.06.2023^{issued by respondent No.2,confirmingthe orderof} dismissal^{of petitionerfrom service rzde Rc.No.64O|PR-O6/WZ} (MZ-lIl2O22 RO.No.255l2022^{dated29.O9.2022passedbv} respondent No.3,^{communicated byrespondent No.4 on} t7 .O8.2023^{uide D.O.No.7835 No.L&O} /⁸⁸ /²²⁵ I^{2022-23, dated} 27.07.2023^{are set aside.However,this order does not preclude} the respondents^{in taking disciplinary action in accordalce with} law. In^{the event of respondentsdeciding to take further} disciplinary^{action, the petitionershall be deemedto be under} suspension^{from servicefrom the date of order of dismissal. If no}

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disciptinary action is initiated against the petitioner, W-3246E 2023 he shali be entitled to a.ll consequential benefits. Such decision as to initiation of disciplinary action or otherwise shall be taken within a period of two months from the date of receipt of a copy of this order-

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Miscellarreous petitions, if any, pending in this writ petition shall stand closed. There shall be no order as to costs.

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SD/.P. PADMANAB HA REDDY A EGISTRAR

//TRUE COPY//

To,

. SECTION OFFICER