P. Bichaiah Vs Superintendent of Police

M. Dayakar ReddY,^{s/o M} Manik Reddy^{(Late) Aged 47 years,Head} Constable, on deputation As Head Consiable^{ln{elligenceVikarabad,} Vikarabad District

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...PETITIONER

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AND

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1 Superintendent of^{Police, Medak District At Sangareddy'}

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2 Superintendent of Police,^{Vikarabad District' Vikarabad}

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J Superintendent of Police,^{Rangareddy District, Ranga Reddy}

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4 Deputy lnspector General^{of Police, Nizamabad Range, Nizamabad'} Telangana State

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5 Director General of Police,^{State of Telangana, Lakadikapul, Police} Headquarters,^HYderabad

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State of Telangana^{represented by its Principal Secretary, Home Department'} Secretariat Build ings,^HYderabad

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...RESPONDENTS

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Petition under Article^{226 ol lhe constitutionof lndia praying that in the} circumstances stated in^{the affidavit filedtherewith, the High court may be} pleasedtograntappropfiatereliefrnoreinthenatureofWritofMandamusunder irti"t" 226-of the^{bonstitution of declaringthe proceedingsD.No.1 304/2016 /} r.\to.nolpnyalzol5 dated^{20.05.2016issued by the 1st respondent,in so far as it} relates to not treating^{the deemed suspensionperiod from 24.O1.2005lo} 03-07.2013 as on duty^{and treatingas not on duty is concerned'as arbitrary'} ittljat, Jiscriminatory,^{malafide violating Article 1 4, 16 and 21 of the Constitution of} rnoia, ano also declare^{the action of the 6th respondent in not passing final orders} in pursuance of the Report^{submittedby the 5th respondentby proceedings} Rc-No.georrglzote Dated^{19.07,2018, as equallyarbitrary,illegal} "nq unconstitutional violating^{Article 14, 16 and 21 of the constitutionof lndia, and}

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issue consequential directions, directing the respondents to^{forthwith paythe full} salary to the petitioner for the deemed suspension^period from 24.01.2005^to 03.07.2013 including increments and all other consequential^{benefits,forthwith, if} necessary directing the 6th respondent to^pass final orders to that^{effect in} pursuance of Report submitted by the 5th respondent by^proceedings Rc.No.380/T3/2018 Dated 19.07.2018 to the Government

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lA NO: 2 OF 2019

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Petition under Section 151 CPC^praying that in the circumstances statedⁱⁿ the affidavlt filed in suppo( of the^petition, the High Court may be^{pleased to} suspend the operation of the^proceedings D.No.13041 201() I^{No.A6/PR/8/2015} dated 20.05.2016 issued by the 1st respondent, in so far as it relates to^not treating the deemed /suspension^period from 24.01.2005 to 03.07.2013 as^{on duty} and treating as not on duty is concerned, with a direction to^pay the salary^and release the increments for the said^period, to the^{petitioner, pending} disposal^of the writ petition.

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lA NO: 1 OF 2019

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Petition under Section 151 CPC praying that in the circumstances statedⁱⁿ the affidavit filed in support of the^petition, the High Court may be^pleased to^direct the 6th respondent to forlhwith to^pass appropriate orders as cer law^{in pursuance} of the Report submitted by Sth respondent by^proceedings Rc.No.380fi312018 Dated 19.07.2018,^pending disposal of the Writ Petition.

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Counsel for the Petitioner: SRl. P V KRISHNAIAH

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Counsel for the Respondents: Government Pleader for Services^(Home)

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wRlT PETITION NO: 5447 Of2019

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Between:

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P. Bichaiah, s/o [Vl. Ramanna (Late) Police Constable, PS Chiragpally, Zaheerabad Crrcle, Sangareddy District H.No.2-74, Khi:napur Village, Kohir Mandal, Sangareddy District

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...PETITIONER

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ANO

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1 Superintendent of Police, Sangareddy District Sangareddy 2 Superintendent of Police, Medak District, at Sangareddy 3 Superintendent of Police, Rangareddy District, Ranga Reddy

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4 Deputy lnspector General of Police, Hyderabad Range, / HFAC Nizamabad Range, Telangana State

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5 Director General of Police, State of Telangana, Lakadikal)ul, Police Headquarters, Hyderabad

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...RESPONDENTS

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6 State of Telangana, represented by^{its Principal Secretary, Home} Department, Sicretariit^{Buildings,- Hyderabad}

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Petition under Anicle 226 of the^{Constitution of lndia prayingthat in the} circumstances stated in^{the affidavit filed therewith,the High Court may be} pleased to grant appropriate relief more in the nature^{of writ of Mandamus under} Artict" 2ZO-of the Constitution^{of declaringthe proceedingsD.No.1304/2016/} No.A6/PRJ8/2005 dated 2005.2016^{issued by the 1st respondent, in so far as it} relates to not treating the deemed^{suspension periodfrom 24.01.2005to} 1O-1o.2O12 as on duty and treating as^{not on duty is concerned,as arbitrary,} ilegal, discriminatory, malafide violating^{Article 14, 16 and 21 of the constitution of} lndia, and also declare the action of^{the 6th respondent in not passing final orders} in pursuance of the Report^{submittedby the sth respondentby proceedings} Rc.No.380ff3/2018 Dated 19.07.2018, as^{equally arbitrary,illegaland} u nconstitutional violating^{Article 14, 16 and 21 of the constitution of lndia,and} issue consequential directions, directing^{the respondentsto forthwith paythe full} salary to the^{petitionerfor the deemed suspension periodfrom 24.O1.2OO5 to} fii6.ZO12 iniluding increments^{and all other consequential benefits,forthwith, if} necessary directing the^{6th respondentto passfinal orders to that etfect in} pursuance of Report submitted by the^{STh respondentby proceedings} Rc. No.380/T3/2018 Dated^{19.O7.2018to the Government}

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lA NO: 2 OF 2019

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Petition under section 151 CPC^{praying thatin the circumstances statedin} the affidavit filed^{in support of the petition, the Highcourt may be pleased to} suspend the operation of^{the proceedings D.No.130412016 I No.A6/PR/8/2015} dated 20.05.2016 issued^{by the 1st respondent,in so far as it relates to not} treating the deemed suspension^{period from 24.01.2005 lo 10.10.212 as on duty} and tr6ating as not on duty^is concemed,^{with a direction to pay the salaryand} .etease thJ increments^{for the saidperiod,to the petitioner, pendingdisposal of} the writ^petition.

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lA NO: 1 OF 2019

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Petition under section 151 CPC^{prayingthat in the circumstances statedin} the affidavit filed in support^{of the petition, the Highcourtmaybe pleased to direct} the 6th respondent to forthwith to^{passappropriate orders as per law in pursuance} of the Report submitted by^{sth respondent by proceedingsRc.No.380fi312018} Dated 19.07.2018,^pending disposal^{of the WritPetition.}

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Counsel for the Petitioner: SRl.^{P V KRISHNAIAH}

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Counsel for the Respondents: Govemment^{Pleader for Services (Home)}

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The Court made the following: COMMON^ORDER

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: ii;i .:ttii'.!^

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THE HON, BLE SR^{I JUSTICE NAGESHBHEEMAPAKA} WRIT PETITI^{ON [email protected] of 2OL9}

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COMMO^{N ORDER:}

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Petitioners-M.^{Dayakar Reddy and P' Buchaiah, while working in} Munpally Police^{Station,havetaken Begari Narsimhuluand Jayaram} ReddytothePoliceStationon20.06.T99Tontheallegationoftheftof woodenframesofSivaSivanilnternationalschool.Petitionersletoff Jayaram Reddy,^{however, confined Begari Narsimhulu in the Police} Station, beat^{him wlth rubbers,poured hot water, and tortured him'} Unable to bear^{the torture,Begari Narsirnhulupoured kerosene upon} himselfandattemptedsuicidebysettinghimselfablaze'Hewastakento Gandhi Hospital^{hospital where he succumbedto burnson O7'O7'7997} after^giving Dying^{Declaration to the learned Magistrate'}

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Upon the orders^{of Addl.DGP,ClD, A'P' Hyderabad,vide Memo} dated03.02.lggS,theDeputySuperintendentofPolice,ClD,Nizamabad Zone, took up^{investigation and filed charge sheet beforethe Additional} Judicial Magistrate^{of First Class,Sangareddy, which was registered as PRC} No.17/2000, and^{takencognizance for the offences punishable under} sections 342,^{347 and 306 IPC and section 3(1xx) of the sc/ST (PoA) Act,} 1989. Upon committing^{thecase to the Court of Sessions,the same was} made over to the Special^{Judge for trial of offencesunder SC/ST(POA)Act'} 31989, Medak,^{Sangareddy,(for short, the trial Court)' The trial Court'} after appreciation^{of evidence of PWs.1 to 23 and documents Exs'Plto} P23 filed on behalf of^{prosecution,and Ex.D1 on behalf of accused'} honvicted the^petition ers/accused^{for the offence punishable} ,under -

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Section 306 tpC by Judgment dated 24.01.2005, while acquittint them of the offences under Sections 342 and 347 lp}and Section 3(1)(x) of the SC/ST (PoA)Act, 1989.

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consequent to the judgment of the triar court, dated 24.07.2005, the petitioners were dismissed from service w.e.f. 24.01.2005.

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The petitioners filed an Appeal, i.e., CriminalAppeal No.72 of 2005 challenging the judgment of the trial court. This court vide Judgment dated 20.03.2012 allowed the Appeal acquitting the petitioners of the offence under Section 306 of lpC.

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Consequent to the acquittal of the petitioners, the petitioners were reinstated into service by setting aside of dismissar orders, and directing Departmental enquiry on the misconduct that had the effect of imposing penalty of dismissar from service under Andhra pradesh civir services (Classification, Control & Appeal) Rules, 1991, and directing to deem the period between the date of judgment of trial Court convicting the petitioners and the date of reinstatement consequent to acquittar by the High Court, as deemed suspension.

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ln the Departmental Enquiry, the Enquiry Officer recorded the statements of prosecution witnesses, and held that the a llegations/cha rge against both the petitioners as ,,Not proved,,. The Department has written to the Government vide retter dated 09.01.2015 seeking instructions in the matter. The Government vide Memo dated 26.08.2015 informed that the Government neither suspended nor reinstated the petitioners and hence the competent authority who issued suspens ion/reinstatement orders have to take a decision on the

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regularization of^{deemedsuspensionof the petitioners under} Fundamental^Rule54-B'

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Thereafter,respondentNo'1-superintendentofpolice'Medak' after^going through^{entire oE recordsi'e', Preliminary Enquiry report' OE} Minutes, Government^{Memos and otherrecords, and keepingin view the} judgments of Hon'ble Supreme^{Court passed Order dated20'05'2015} holding that the^{period from 24.01.2005to 10'10'2012- in respectof} petitioner-M.Buchaiah,^{and the periodfrom 24'OL'2OOStc 03'07'2013in} respect of^{petitioner-M.Dayakar Reddy be treatedas Not on Duty'}

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The petitioners^{filed an Appealbefore the respondent No'4-Deputy} lnspector General.^{The respondent No'4 disposedof the Appealby} upholding the^{decision of Superintendentof Police' Medak' Sangareddy'} in treating the^{period from 24'01"2005 to 10'10'201i1 in respect of} petitioner-P.Buchaiah,^{and the period from 24'01'2005 to 03'07'2013in} respect of^petitioner-M 'Dayakar^{Reddy be treatedas Not on Duty'}

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Thereafter,petitioner-P.BuchaiahfiledaMercyPetitionbeforethe respondent No.5-Director^{Generalof Police,and the respondent No'5'} vide Memo dated^{18'06'2018 informed the resoondent No'3-} Superintendent of^{Police that the petitioner has exlraustedall the} channelsofremediesprovidedinAPcs(CC&A)Rules,lggl,andaccording to Government^{Memo dated 10.07.2000,thereis no provisionfor mercy} petition under the Rules.

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Thereafter, the^{respondent No'6vide Memo dated 17'09'2018} informed that the^{representationof the petitioners to} treat the suspension^{and out of employmentperiod 35 "6n rJuty"} has been examined and lodged^{at Governmentlevel}

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Petitioners challenge the Order dated 20.05.2016 passed by respondent No.1-superintendent of police, Medak, in treating the period from 24.07.2O05 to 10.10.20L2 in respect of petitioner_p.Buchaiah, and the period from 24.0L.2O05 to 03.07.2013 in respect of petitioner_ M.Dayakar Reddy as Not on Duty; and the inaction of respondent No.1_ Government in passing final orders on their representation to treat their suspension periods as^.On duty' for all purposes with all consequential benefits.

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Heard Mr. p.V. Krishnanaiah, learned counsel for the petitioners, and learned Government pleader for Services (Home). perused the record.

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Learned counsel for the petitioners would essentially contend that the petitioners were earrier convicted for the offence under Section 306 lPC, however, they were ultimately acquitted by this Court in the Criminal Appeal proceedings, and therefore, the petitioners having been acquitted of alr the charges are entitred to reinstatement with a, consequentiar benefits, and therefore denying the benefits by treating the period between dismissal from service and reinstatement as,,Not on Duty',, is illegal and arbitrary.

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- Learned Government pleader, on the contrary would contend that the criminal proceedings before the Criminal Court, and the Departmental proceedings are two entirery different proceedings with different focus and application of law. Learned Government pleader would contend that the alleged criminal offence under lndian penal Code, and the alleged

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misconduct under Departmental Rules cannot^{be lookedat on the same} footing. He contends that acquittal in either of the^{proceedingswould not} automatically neither impact nor nullify action^{in the otherproceedings.}

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Learned Government Pleader would rely on^{ther judgment of the} Hon'ble Supreme Court in Krishnakant^{Raghunath Bibhavnekarv. State} Of Maharashtral and contends that acquittal^{does not automatically} entitle one to^get consequential benefits.^{He would furtherrely on} Reserve Bank of lndia vs Bhopal Singh Panchal2 and^{contendsthat the} employee does not automatically become entitled to full^{pay and} allowances for suspension^period. He would further^{contend that the Hon'} ble Supreme Court in Bhopal Singh^{Panchal (2 supra) observed that} during the suspension^period, the employee^{renders no work, and the} reason the Bank has kept the employee away from work^was due^{to the} employee's own involvement in the misconduct^{and thereforethe} employee is not entitled to backwages/benefits^{even though he is} subsequently reinstated. Learned Government^{Pleader wouldfurther rely} on^judgment of the Hon'ble Supreme Court in^{Ranchhodii Chaturii} Thakore v. The Superintendent Engineer, Guiarat Electricity^Board, Himmatnagar^(Gujarat)3 and contends that it^is the^{conduct of petitioners} themselves that has rendered the employer to keep the'n away^{from duty} by dismissing them upon convicting by the trial Court.

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Learned Government Pleader would therefore^{contendthat there} is no illegality in treating the^period of out of^{employmentof the}

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1 1997 (3) SCC 636

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, 1994 (1) scc 541

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r (1995)r11 sEC 603

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petitioners as "Not on Duty" and there is no impropriety in the impugned order passed by respondent authorities.

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5' lt is not in dispute that the petitioners have confined the deceasedBegari Narasimhulu in the^porice station on an ailegation of theft of wooden frames of a schoor, and thereafter the deceased committed suicide by setting himself ablaze. The Department initiated action against the petitioners, and the trial Court convicted them, and this Court acquitted them in the criminar Appeal filed by the petitioners. rn the intervening period of conviction by trial court and acquittal by this court, the respondent-Depa rtment dismissed the petitioners from service, however, upon acquittal by this Court, they were reinstated and the period between dismissal and reinstatement was treated as,,Not on DuV,.

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ln Raj Narain vs Union Of lndiaa, this Court while referring to the case in Ranchhodji Chaturji Thakore (3 supra) held as follows:

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IThe claim of the petitioner therein was that he was entiUed to full wages on his acquittal by the Criminal Coud This Court rejected the said submission by holding that the question of payment of back wages would arise only in case of termination of service, pursuant to ltndings recorded in a departnental enquiry. ln the event of the dismissal order being set aside by the Cour! the delinquent employee would be entided to claim back wages as he was unlaMully kept away from duty by the employer. This Court was of the opinion that an employee against whom criminal .proceedings are initiated would stand on a different footing in

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cornparison to an employee facing a^{departnental inquiry'The} employee involved in a crime^has disabled^{himself from rendering} his services on account of his incarceration^{in jail. Subsequent} acquittal by an Appellate^Court would^{not entide him to claimback} wages."

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The decision of Ranchhodji^{Chaturii Thakore (supra) was} followed by this Couft in Union of lndia^{and Others v. Jaipal Sinqhs} to refuse back wag6 to an employee^{who was initially convicted} for an offence under Section^{302 read with Section:14 IPC and} later acquitted by the High Court^{in a criminalappeal. While} refusing to grant rcllef to the Petitioner^{therein,this Court heldthat} subsequent acquittal would not entide^{an employee to seek back} wages. However, this Court was of^{the opinionthat if the} pKrsecution is launched at the behost of the department^{and the} employee is acquitted, difrerent considerations^{may arise.The} learned counsel for the Appellant endeavored^{to distinguishthe} prosecution launched by the police for involvement of^an employee in a criminal case and the criminal^{proceedings initiated} at the behest of the emPloyer. The obsewation^{made in the} judgment in Union of lndia and Otherc v. Jaipal Singh lsupra) has to be understood in a manner in which^{the department would} become liable for back wages in the event^{of a finding that the} initiation of the criminal^{proceedingswas mala fide or with} vexatious intent ln all other Gases, we do not^{see any difference} between initiation of the criminal^{proceedingsby thedepartsnent} yis.a-vis a criminal case lodged by the police. For example, if an employee is involved in embezzlement of^{fundsor is found} indulging in demand and acceptance of illegal^{gratification,the} employer cannot be mulcted with full back^{wages on the acquittal} of the person by a criminal CouG unless^{it is found that the} prosecution is malicious.

'^{2004 (1)SCC 121}

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lt may be noted that criminal proceedings and disciplinary proceedings are two entirely different proceedings, with different yardstick of proof required to establish the charges, albeit they may have identical basis of charges against a derinquent official. The Hoh, ble Supreme Court in M/s Stanzen Toyotetsu lndia p. Ltd vs. Girish.\i6 while holding that it is we, settred that there is no regar bar to the conduct of the disciplinary proceedings and a criminaltrial simultaneously, observed as follows:

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'1ln a er An hra Pr hs d Tra nv. iltohd. You suf Mi an l(19971 2 SCc 699J, rhis Court declared that the purpose underlying deparfnental proceedings is distinctly different from the purpose behind prosecution of offenders for commission of offences by them. While criminal prosecution for an offence is launched for violation of a duty that the offender owes to the society, departrnental enquiry is aimed at maintaining discipline and efficiency in service. The difference in the standard of proof and the appricataon of the rures of evidence to one and inappricabirity to the other was arso exprained and highlighted onty to explain that conceptually the two operate in different spheres and are intended to serve distincfly different purposes.,,

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ln Ranchhodji Chaturji Thakore (3 supra), the Hon,ble Supreme Court while deciding the aspect of backwages upon reinstatement consequent to acquittal in criminal proceedings, observed as follows:

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"The reinstatement of the petitioner into the service has already been ordered by the High Courl The only question is: whether he entitled to back wages? lt was his conduct of involving himself ,is \

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in the crime that was taken into account for his not being in service of the respondent Consequent upon his acquittal, he is entitled to reinstatement for the reason that his sewice was terminated on the basic ofthe convic{ion by operation of^proviso to the statutory rules applicable the situation. The question of back wages would be considered only if the respondents have taken action by way of disciplinary proceeding and the action was found to be unsustainable in law and he was unlawfully prevented from discharging the duties. ln that context his conduct becomes relevant, Each case requircs to be considered in his own backdrops. ln this case, since the petitioner had involved himself in a crime, though he was later acquitted, he had disabled himself from rendering the service on account of conviction and incarceration in^jail. Under these circumstances, the petitioner is not entitled to payment of back wages. The learned single iudge and the Division Bench have not committed any error of law warranting interfercnce."

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ln the instant case, admittedly, there is no finding by the trial Court or this Court that the criminal proceedings were inil.iated against the petitioners with malicious intent though they have notlring to do with the charges at all. Further, the respondent-Department has not dismissed the petitioners until after they were convicted by the trial Court after due trial. Further, in the Criminal Appeal before this Cr:urt, there is no observation by this Court that the Department had resorted to vexatious litigation or malicious prosecution against the petitioners. When the petitioners are acquitted of the charges by a Cor" rt of competent jurisdiction, they may be entitled to reinstatement upon making a representation or at the initiative of the employer, however, the very reinstatement upon acquittal alone would not automatically make the petitioners entitled to backwages/a rrea rs/notiona I increments or

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attendanVconsequential service benefits, in view of the settled law that disciplinary proceedings and criminal proceedings are two independent proceedings with different focus and object for decision/determination, they stand on a different pedestal.

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Further, in the light of the law laid down by the Hon, ble Supreme Court in Ranchhodii Chaturji Thakore (3 supra), and in Raj Narain (4 supra) whire referring to Jaipar singh (supra), it was the conduct of the petitioners invorving themserves in the crime that was taken into account for not being in the service of the respondent_Department and the petitioners. As observed by the Hon,ble Supreme Court in Ranchho ji Chaturji Thakore (3 supra), the question of backwages would be considered only if the respondents have taken action by way of disciplinary proceeding and the action was found to be unsustainable in law, whereby they were unlawfully prevented from discharging their duties. Further, there is no finding of vexatious intent or malicious prosecution by the respondent_Department in prosecuting the criminal case against the petitioners, nor there is any order of the Court, while acquitting the petitioners, specifically directing that the petitioners would be entitled to any benefits, monetary or otherwise, for the period they were out of employment on account of dismissal by the respondent_ Department upon being convicted by the trial Court.

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ln the facts and circumstances of the present case, this Court is of the view that the respondent-Depa rtment cannot be mulcted with payment of backwages or notional rncrements or any attendant/consequential benefits whatsoever, for the period the

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petitioners were out of service, merely for the reason they were reinstated upon acquittal by this Court. ln that view of the matter, this Court does not see any illegality or impropriety in the impugned Order dated 20.05.2016, and subsequent orders passed by the respondentDepartment, treating the period from 24.01.2O05 to 10.10.2012 in respect of petitioner-P.Buchaiah, and the period frorn 24.01..2005 to 03.07.2013 in respect of petitioner-M.Dayakar Reddy as "Not on Duty".

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