Telangana High Court
Talari Narayanappa vs The State Of Telangana on 20 February, 2025
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 6160 OF 2019
O R D E R:
Heard Sri C. Damodar Reddy, learned Senior Counsel appearing for Sri C. Ruthwik Reddy, learned counsel for petitioner and learned Special Government Pleader for Home (Services) on behalf of Respondents.
2. The case of petitioner is that he was selected and appointed as Police Constable in 2nd BN at Kurnool in 1983 and discharged his duties regularly and sincerely for more than 12 years. Subsequently, he was promoted as Head Constable and transferred to 10th BN, APSP, Beechpally in 1995. As things stood thus, on 02.07.2014, petitioner was posted as store NCO and in-charge of Bell of Arms at Quarter Guard of the said campus and since he was under severe mental agony and disturbed state of mind due to the death of his grandson, he took permission from Sri. NVAN Reddy, RSI, who was in duty at that time and went to his quarter and slept and thereafter, the duty officer Sri. V. Laxminarayana, RI called him over phone and as per his direction, came to quarter guard and slept there 2 and further in the early hours at about 5:30 am in the routine course, petitioner opened Bell of Arms for verifying the intact position of Arms and Ammunition and closed the Bell of Arms. On 03.07.2014, Sri. P. Samuel John, the Assistant Commandant, 10th BN-TSSP, Beechpally gave a written report to the Sub-Inspector of Police, Itikyala Police Station stating that one SLR Magazine loaded with 20 rounds of 10th BNTSSP i.e., Government property was missed by Sri. K. Naresh Kumar, PC-802 of "C" Coy of the said unit while petitioner was performing his duties at Battalion Quarter Guard on 02.07.2014 from 17:00 hrs and at that time, number of personnel mentioned therein are in duty at Quarter Guard including petitioner and requested for necessary action.
Based on the said report, police registered Crime No. 73 of 2014 for the offence under Section 379 IPC against unknown accused. On investigation and on the information of officers i.e. V. Laxminarayana, RI and KVV Prasad, RI who are inimical towards petitioner, on 30.07.2014, petitioner was arrested and remanded to judicial custody by the Police on the allegation that petitioner committed theft of SLR with 20 rounds 3 of Magazine of Mr. Naresh Kumar. Further, based on the PE report dated 05.07.2014 submitted by Sri. Jaggu Naidu, Assistant Commandant, the 4th respondent initiated disciplinary action against petitioner, one Md. Nazeeruddin, HC 652, S. Radha Krishna, PC340, Chinna Ayyanna, PC 976, G. Krishna, PC 147 and K. Naresh Kumar, PC 802 of the said unit and placed them under suspension from service and petitioner was placed under suspension vide proceedings dated 05.07.2014 till conclusion of criminal and disciplinary proceedings. It is further stated that subsequently, the 4th respondent revoked suspension order in respect of other persons who were initially suspended within two months however, they did not consider his case. It is stated that police filed charge sheet against petitioner on 30.08.2014. Further, vide Order dated 10.10.2014, the 4th respondent extended suspension of petitioner for a further period of six months. The 4th respondent issued Memorandum dated 15.10.2014 along with the state of Article of charges.
Aggrieved by the suspension order, petitioner filed O.A. No. 2860 of 2015; by order dated 24.09.2015, the Andhra 4 Pradesh Administrative Tribunal directed respondents to review suspension order and pass appropriate orders on merits for reinstatement within a period of eight weeks. Respondents initiated oral enquiry against petitioner in pursuance of Memorandum of Charges issued. Petitioner filed OA. No. 6366 of 2015 and by order dated 20.11.2015, the Tribunal directed respondents not to proceed with disciplinary proceedings in respect of charges 2 and 3 till finalization of criminal case registered against petitioner for the alleged theft, however, they are at liberty to proceed with disciplinary case under the 1st Article of Charge. Thereafter, the 4th respondent conducted oral enquiry of the 1st charge that petitioner exhibited gross misconduct by failing to sleep at quarter guard on the night of 02.04.2014 and on opening and closing Bell of Arms of HQ coy on own accord. The 4th respondent issued final orders dated 07.01.2016 removing petitioner from service by revoking the suspension order.
Aggrieved by the said removal order, petitioner preferred Appeal to the 5th respondent - Inspector General of Police, TSSP Battalions, Hyderabad requesting to set-aside 5 removal order and reinstate petitioner into service. However, the Appellate Authority mechanically rejected the Appeal on 22.03.2016. It is further stated that in C.C. No. 251 of 2014, learned Judicial Magistrate of First Class at Alampur vide judgement dated 27.10.2018 acquitted petitioner finding that prosecution failed to produce cogent and proper evidence to prove the ingredient of theft.
It is the case of petitioner that even after receiving the copy of judgement, respondents failed to reconsider the matter and review the order dated 07.01.2016 and that respondents without waiting for the result of the said criminal case, issued order dated 07.01.2016 removing petitioner from service. As far as the 1st charge is concerned, there was no misconduct and gross dereliction of duty by failing to sleep at quarter guard on the night of 02.07.2014 warranting severe penalty of removal of service.
3. The 4th respondent filed counter stating that petitioner has no valid and substantial grounds to grant the relief since he filed appeal petition to higher authorities which was rejected vide order dated 22.03.2016 and further petitioner 6 filed OA. No. 6366 of 2015 and OA No. 1746 of 2016 with the same cause which are pending disposal and further as per Rule 40 of CCA Rules, he can submit Revision Petition to the Department Authorities and without exhausting the channel available, he approached this Court. It was further stated in the counter that petitioner absented to duty unauthorizedly without intimation to anyone nor has taken any permission to leave the duty. There was theft of 7.62 mm Magazine No. 198 SA Balls (20 No's) on 02.07.2014 midnight for which the guard personnel including petitioner are responsible as they were on duty on that date. Preliminary Enquiry conducted by the Assistant. Commandant revealed that petitioner un-authorizedly absented himself to duty and he had exhibited gross negligence and misconduct in absenting to duty on such a very important place at which large arms and ammunition was stored. Thus petitioner violated APSP Manual Standing Order No. 11(IX) and at about 5:30 AM, petitioner opened the Head Quarter Coy Bell of Arm without any reason and without permission of the Guard Commander and Duty Officer at his own accord within 10 minutes locked the same and went away from the place. On 7 physical verification by the Committee, two live rounds were traced in HQ Coy stores which was illegally kept. Crime NO. 73 of 2014 was booked in Itikyala Police Station. It was further stated in the Counter Affidavit that disciplinary action was initiated against all the guard personnel on duty on 02.07.2014 for that lapse involving theft of ammunition by placing the individuals under suspension including petitioner on 05.07.2014. Suspension on other guard personnel except petitioner was revoked subsequently while petitioner continued under suspension in view of his arrest and involvement in the case. It is stated further that during the investigation by SI of Itikyia PS, it was stated that petitioner confessed that he committed theft of 15 SLR live rounds and one empty SLR Magazine from the Bell of Arms to sell them outside on higher rates for self-benefit.
4. It is stated further that Sri Krishna Prasad, Assistant Commandant conducted departmental enquiry following all the rules and procedures and submitted enquiry report dated 07.08.2015 wherein it was stated that all the three charges against petitioner were proved in the Departmental 8 Enquiry and agreeing with the findings of Inquiry authority, minutes of the OE was communicated to petitioner calling for his explanation on the minutes. However, petitioner did not submit any explanation and approached Andhra Pradesh Appellate Tribunal wherein vide interim Order dated 20.11.2015, respondents were directed not to proceed with departmental proceedings against petitioner for charges 2 and 3 which pertain to committing of theft till criminal case is finalized. However, granted liberty to proceed with the disciplinary case under 1st Article of charge. After thoroughly examining all the aspects, the Commandant 10th BN. TSSP issued orders vide D.O. No. 30/2016, dated 07.01.2016 imposing punishment of Removal from service since the lapse was very serious i.e., absence from guard duties where large Arms and Ammunition are kept for safe custody.
It is further stated that Hon'ble Judicial Magistrate of First Class had considered only the limited point of committing theft of live rounds of loaded magazine and mentioned that the investigating officer failed to conduct proper 9 investigation and failed to conduct the Panchanana as per the procedure contemplated and in view of the lacunae in the case of prosecution, the Court felt that the prosecution utterly failed to produce cogent and proper evidence against the petitioner in order to prove the ingredient of theft. It was further contended that petitioner was acquitted on benefit of doubt and it is not clear acquittal whereas in departmental enquiry in which petitioner was given ample opportunity all the three charges against petitioner was proved. It was further contended by the 4th respondent that since all the charges against petitioner were proved in the departmental proceedings, punishment of Removal from service is imposed on him duly following CCA Rules based on the 1st Article of Charge.
5. In response to the Counter Affidavit, petitioner filed reply contending that Order dated 07.01.2016 of the 4th respondent and the one dated 22.03.2016 of the 5th respondent are unreasonable on the ground of discrimination among delinquents in initiating criminal prosecution and disciplinary proceedings and imposing harsher punishment of removal from 10 service though petitioner was acquitted from criminal case. It was contended that on 03.07.2014, the Assistant Commandant lodged a written report for commission of theft and a case was registered against unknown accused and took up investigation. It was further contended that subsequent to the interim Order dated 20.11.2015, the 4th respondent in a hurried manner and prejudicially completed enquiry in respect of the 1st Article of charge and passed order on 07.01.2016 removing petitioner from service. Petitioner filed Appeal on 20.01.2016 which was rejected by the Appellate Authority vide order dated 22.03.2016 and since the documents and report was not furnished immediately, petitioner could not provide explanation within time and when subsequently tried, the 4th respondent refused to receive the same. Petitioner contended that the 1st Article of charge is inter-related to theft and when the allegation of theft is not proved by the competent criminal Court, the punishment for Article 1 of charge has no relevance at all and such harsher punishment of Removal from service is unreasonable and unsustainable.
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6. Learned Senior Counsel appearing for petitioner argued that the 4th respondent had exceeded the scope of enquiry and proceedings while passing the Order wherein has taken into consideration Articles 2 and 3 of charge which relate to the alleged theft and imposed harsh punishment on petitioner. The same is evident from counter filed by the 4th respondent wherein it was specifically stated that "since all the charges against petitioner are proved in the departmental proceedings, punishment of removal from service is imposed on him duly following CCA Rules based on the Article of Charge 1. The 4th respondent while passing the Order dated 07.01.2016 has not obeyed the interim Order passed by the Tribunal in OA. No. 6366 of 2015 wherein respondents were directed not to proceed with the departmental proceedings against petitioner for charges 2 and 3 which pertain to theft till criminal case is finalized. The 4th respondent should not have considered Articles 2 and 3 of the charge while proceedings should have limited itself to Article 1 of the charge. Admittedly, no fresh enquiry was conducted by the Enquiry Officer on the 1st Article of charge. It is stated that after clear acquittal in the Criminal 12 Case only, petitioner filed the present Writ Petition aggrieved by the impugned orders dated 07-01-2016 and 22-03-2016 passed by Respondents 4 and 5 respectively.
7. Learned Senior Counsel argued that though awarding of punishment is in the domain of employer, in judicial review, this Court can interfere with punishment which is shockingly disproportionate to gravity of proved misconduct. The 1st Article of charge states that petitioner exhibited gross misconduct and gross dereliction of duty by failing to sleep at Quarter Guard on night of 02.07.2014 as Battalion Duty Sub Junior Officer thereby violated APSP Manual standing order No. 11(IX), thus violated Rule (3) of APCS (Conduct) Rules, 1964. APSP Manual Standing Order No. 11(IX) states as follows "He will sleep in the guard room at night." Rule 3 of APCS (Conduct) Rules, 1964 states: (1) Every Government employee shall be devoted to his duty and shall maintain absolute integrity, discipline, impartiality and a sense of propriety; (2) No Government employee shall behave in a manner which is unbecoming of such employee or derogatory to the prestige of Government; (3) No Government employee shall act in a manner 13 which will place his official position under any kind of embarrassment. The Learned Senior Counsel argued that petitioner sought oral permission of duty officer before going to sleep in his quarter and the same was given by Sri. N.V.A.N. Reddy, RSI. It was further argued that order of the 4th respondent failed to show how Rule 3 of the APCS (Conduct) Rules, 1964 was violated. Even assuming that no permission was granted to petitioner to leave the quarter guard, punishment awarded was unreasonable.
8. Learned Senior Counsel has placed reliance on S.R. Tewari vs. Union of India 1 wherein the Hon'ble Supreme Court held that question of interference and quantum of punishment has been considered by the Supreme Court in catena of judgments and it was held that if the punishment awarded is disproportionate to the gravity of misconduct, it would be arbitrary and thus would violate the mandate of Article 14 of the Constitution. In the present case, the Disciplinary proceedings were conducted on 1 Article of charge alone and the punishment awarded for the same is 1 (2013) 6 SCC 602 14 disproportionate to the gravity of misconduct. In Ranjit Thakur v. Union of India 2, the Hon'ble Supreme Court observed that, "But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on the aspect, which is otherwise, within the exclusive province of the Court Martial, if the decision of theCourt even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. In the present case, the punishment is so stringently disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review." In V. Ramana v. A.P.S.R.T.C. 3 &Ors, the Hon'ble Supreme Court considered the scope of judicial review as to the quantum of punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the Court comes to the conclusion that scope 2 AIR 1987 SC 2386 3 AIR 2005 SC 3417 15 of judicial review as to the quantum of punishment is permissible only if it is found to be "shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards." In a normal course, if punishment imposed is shockingly disproportionate, it would be appropriate to direct Disciplinary Authority to reconsider the penalty imposed. However, in order to shorten the litigation, in exceptional and rare cases, the Court itself can impose appropriate punishment by recording cogent reasons in support thereof. Further, in B.C. Chaturvedi v. Union of India 4, the Hon'ble Supreme Court held that, "if the penalty imposed by an authority "shocks the conscience" of the court, it would appropriately mould the relief either directing the authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation itself, impose appropriate punishment with cogent reasons in support thereof. While examining the issue of proportionality, Court can also consider the circumstances under which the misconduct was committed. The Court may further examine the effect, if the order is set aside or 4 AIR 1996 SC 484 16 substituted by some other penalty. However, it is only in very rare cases that Court might, to shorten the litigation, think of substituting its own view as to the quantum of punishment in place of punishment awarded by the Competent Authority." The Learned Senior Counsel argued that in the present case, the quantum of punishment imposed for the 1st Article of charge is shockingly disproportionate and since petitioner who had already completed 30 years of service as on the date of enquiry and who would have retired within 7 years, should not have been penalized with the punishment of removal of service for a minor misconduct of absenting from duty for few hours and further since petitioner had already undergone severe mental agony and suffered due to removal order and on considering age of petitioner, learned Senior Counsel prayed that Writ Petition be allowed and the orders impugned be set aside.
9. Learned Special Government Pleader Home (Service) reiterated the contents of Counter Affidavit and placed reliance on the Judgement in Writ Petition No. 25759 of 2018, wherein it was held that, "the opinion formed by the Tribunal that the respondent is entitled for the benefit of a clean chit though the 17 Enquiry officer found that the charges against him as proved only on the ground that he is acquitted of the criminal charges by the competent court which is not an honourable acquittal, but on account of the witness turned hostile, cannot be judicially sustained. A judicial exercise of discretion would not be apparent if the reasoning is not in accordance with law." He argued that since the Article of charges were proved in the enquiry and the same are grave, the Court should dismiss the present petition.
10. In view of the rival contentions of learned counsel, the point that arises for consideration is whether, in the facts and circumstances of the case, proceedings Rc.No:A3/08/1265/2014/D.O.No:30/2016 issued by the 4th respondent being the Disciplinary Authority imposing the punishment of Removal from Service on petitioner and order dated 22-03-2016 in Proc. Rc.No:R/4/App/2016-ROO No:75/2016 issued by the 5th respondent in rejecting Appeal confirming the order of the 4th respondent is bad, arbitrary, illegal, misconceived, vindictive and violation of Articles 14, 16 and 21 of the Constitution of India.
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11. The admitted facts are that the 4th respondent initiated disciplinary action against petitioner and placed him under suspension from service under proceedings dated 05.07.2014 till conclusion of criminal proceedings and disciplinary proceedings. Vide interim order dated 20.11.2015, the Tribunal directed respondents not to proceed with departmental proceedings against petitioner for charges 2 and 3 which pertain to committing theft till criminal case is finalized, however, granted liberty to proceed with disciplinary case under 1st Article of charge and the said order still subsists. It is stated in the counter that in the departmental enquiry, all the three charges against petitioner were proved and further stated that since all the charges were proved in the departmental proceedings, punishment of removal from service was imposed duly following CCA Rules based on the Article of Charge 1.
12. A bare perusal of Order dated 07.01.2016 shows that petitioner who was placed under suspension, failed to sleep at Quarter Guard on the night of 02.07.2014 as a Battalion Duty Sub Junior officer and while checking by the Battalion Duty officer, he was found absent from the Quarter Guard and 19 on recalling by the Battalion Duty officer he came to the Quarter Guard, thus he violated APSP Manual Standing order No. 11(IX) as a Battalion Duty Sub junior officer. Further, he was absented from the most important duties i.e. at Quarter Guard where Bell of Arms of all Coys of this unit and Central Magazine situated. Thus, he also violated Rule 3 of APCS (Conduct) Rules, 1964 by becoming absent from most important duties. Therefore, he is revoked from suspension and removed from Service from the date of receipt of acknowledging this Order. The Order issued by the 4th respondent does not provide any reasons as to why such a harsh punishment was imposed on petitioner for absenting from the Quarter guard for few hours on the night of 02.07.2014 and also in the situation when he was called back and asked to sleep in the quarter guard which he obeyed as per the instructions of his superior.
13. In view of the above stated facts and circumstances and the legal proposition and on perusal of the counter filed by the 4th respondent, this Court is of the considered opinion that under these circumstances, it cannot be said that petitioner 20 committed misconduct warranting extreme penalty of dismissal from service.
14. As held in the above referred judgements and as per the Judgement of the Hon'ble Supreme Court in B.C. Chaturvedi's case which held that, 'if the penalty imposed by an authority "shocks the conscience" of the court, it would appropriately mould the relief either directing the authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation itself, impose appropriate punishment with cogent reasons in support thereof. While examining the issue of proportionality, Court can also consider the circumstances under which misconduct was committed. The Court may further examine the effect, if the order is set aside or substituted by some other penalty. However, it is only in very rare cases that the court might, to shorten the litigation, think of substituting its own view as to the quantum of punishment in place of punishment awarded by the Competent Authority', this Court holds that the above judgement squarely applies to the present facts of the case, hence, the penalty imposed by an authority "shocks the 21 conscience" of the Court and it would appropriately mould the relief. On perusal of the Andhra Pradesh Civil Services (CC & A) Rules, 1991, penalties for minor misconduct include Censure, withholding of promotion, withholding of increments of pay without cumulative effect, suspension, reduction to a lower stage in the time scale of pay for a period not exceeding 3 years. However, since petitioner had already undergone severe mental agony and suffered due to removal order and on considering the age of petitioner, this Court is of the opinion not to impose any further penalty on the said minor misconduct of the 1st Article of Charge.
15. In view of the above, the Writ Petition is allowed and Order dated 07.01.2016 issued by the 4th respondent imposing the punishment of removal from service on petitioner and order dated 22-03-2016 issued by the 5th respondent in rejecting the Appeal confirming the order of the 4th respondent are set aside and the respondents are directed to reinstate petitioner into service as Head Constable with all consequential service benefits including arrears of salary with effect from 05-07-2014 till his date of retirement on 31-07-2020 within a period of two 22 months from the date of receipt of this order and communicate the decision to petitioner. No costs.
16 Consequently, the miscellaneous Applications, if any shall stand closed.
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NAGESH BHEEMAPAKA, J 20th February 2025 ksld