Andhra Pradesh High Court - Amravati
C. Lakshmi Narayana vs The State Of Ap on 13 October, 2023
HONOURABLE SMT. JUSTICE V.SUJATHA
WRIT PETITION No.7845 of 2022
ORDER:
The present Writ Petition came to be filed under Article 226 of the Constitution of India seeking the following relief:-
".... to issue a Writ or Order direction more particularly one in the nature of writ of Mandamas declaring the proceedings in C.No.C2/OEPR-13/2017 dt.10.09.2020 of the 4th respondent imposed the penalty of withholding of increments for a period of two years without cumulative effect on future increments and pension besides treating the suspension period from 28.10.2016 to 01.02.2017 as not on duty and same was confirmed by the 3rd respondent vide proceedings in C.No.C2/OEPR-13/2017 (C2/2378/2020)/ R.O.O.No.77/2022 dt.24.01.2022 is illegal, arbitrary, unjust and violation of the Article 14 and 16 of the Constitution of India and quash or set aside the same and consequently direct the respondents to treat the suspension period from 28.10.2016 to 01.02.2017 as on duty and release the increments with all consequential benefits and pass....."
The brief facts of the case are that, the petitioner herein was appointed as Sub-Inspector of Police in the year 2010. At present, he is working as S.I. of Police at District Special branch Kadapa, YSR Kadapa District. While he was working as S.I. of Police in Yerraguntla PS, he was placed under suspension by the respondent No.4/Dy.Inspector of Police, Kurnool Range, Kurnool vide proceedings dated 28.10.2016. Thereafter, a memorandum of 2 VS,J wp_7845_2022 charge was issued vide proceedings in C.No.C2/OEPR-13/2017 dt.07.11.2017 by respondent No.4 framing two charges against him, for which the petitioner submitted a detailed explanation. Being satisfied with the explanation submitted by the petitioner, respondent No.4 vide proceedings dated 31.01.2017 has reinstated the petitioner into service. Thereafter the SDPO, Rajampeta was appointed as Inquiry Officer and oral enquiry was ordered by respondent No.4 vide proceedings dated 24.03.2018. The petitioner attended the oral enquiry and during course of oral enquiry the S.D.P.O, Rajampeta has examined 4 witnesses on behalf of prosecution as P.Ws.1 to 4 and one witness on behalf of petitioner. The enquiry officer SDPO, Rajampeta has submitted his Minutes of enquiry on 10.04.2018 that the charges leveled against the petitioner are "not proved". Accordingly, respondent No.4 vide proceedings dated 10.04.2018 directed the petitioner to submit representation within fifteen days. In pursuance of the said direction, the petitioner submitted representation to respondent No.4. Thereafter, respondent No.4/Dy.Inspector of Police, Kurnool Range, Kurnool vide memorandum dated 19.10.2018 has communicated Disent Note and called for further representation. 3
VS,J wp_7845_2022 Thereafter, the petitioner submitted a detailed representation to respondent No.4 on 19.11.2018.
It is further contended that respondent No.4 without considering the representation of the petitioner and enquiry report dated 10.04.2018 has imposed the penalty of withholding of increments for a period of two years without cumulative effect on future increments and pension besides treating the suspension period from 28.10.2016 to 01.02.2017 as not on duty vide proceedings in C.No.C2/OEPR-13/2017, dated 10.09.2020, which was further confirmed by respondent No.3 vide orders dated 24.01.2022 in an appeal preferred by the petitioner.
Respondents filed counter admitting that the petitioner was placed under suspension from service vide Proc.No.C2/576/2016 (ROO.No.708/2016) dated 28.10.2016 of the D.I.G. of Police, Kurnool Range and subsequently his suspension was revoked vide Proc.No.C2/576/2016 (R.O.O.No.52/2017) dated 31.01.2017 of the D.I.G. of Police, Kurnool Range, Kurnool. Thereby, he remained under suspension from service from 28.10.2016 to 01.02.2017. Later, a Memorandum of Charge under Rule 20 of Andhra Pradesh Civil Services (Control, Classification and Appeal) 4 VS,J wp_7845_2022 Rules, 1991 was issued on the petitioner vide No.C2/OEPR- 13/2017 dated 07.11.2017 of the D.I.G. of Police, Kurnool Range.
It is further contended that the petitioner exhibited grave reprehensible conduct, moral turpitude, lack of integrity, lack of devotion to duty by indulging in such unlawful and corruption activities, thereby violated Rule 3 of Andhra Pradesh Civil Services (Conduct) Rules, 1964. The charges leveled against the petitioner are that he demanded and accepted an amount of Rs.2,00,000/- as illegal gratification from Shaik Abdul Khadar Jilani to run matka company in Yerraguntla Town and demanded and collected an amount of Rs.1,20,000/- as monthly mamools from Shaik Abdul Khadar Jilani to run matka company, and also involved in civil dispute pending between Shaik Mohammad Rafi and G.Ram Prasad Reddy and collected illegal gratification of Rs.3,00,000/- from Shaik Rafi.
It is further contended that in the present case, during the Preliminary Enquiry, all the witnesses namely (1) Mr. Abdul Khader Jilani (2) Mrs. Shaik Ghousia (3) Mr. Shaik Mohammad Rafi (4) Mr. Shaik Mohammad Rafi (the private jeep driver of the petitioner) and (5) Mr. Gunala Ram Prasad Reddy had clearly deposed the unlawful and corruption activities of the petitioner 5 VS,J wp_7845_2022 and in fact based on their evidence only, the disciplinary action was initiated against the petitioner. But, during Enquiry, all the witnesses turned hostile and did not support their earlier version deposed during the preliminary enquiry as the petitioner could manage them and tutored them to depose in his favour.
It is further contended that as per proviso of Rule 40 and 41 of The Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short "CCA Rules") the petitioner can prefer Revision Petition or Review Petition to the competent authorities requesting to review the punishment orders imposed on him. But, the petitioner has not preferred any Revision to the competent authority i.e., Principal Secretary to Home, Government of A.P., but approached this Court of A.P. by filing this Writ Petition and requested to dismiss the writ petition.
Heard learned counsel for the petitioner and learned Government Pleader for Services - I. It is evident from the material available on record, the petitioner was placed under suspension by respondent No.4 vide proceedings dated 28.10.2016, therefore, a charge memo was issued. Vide memorandum of Charge in C.No.C2/OEPR - 13/2017 dated 07.11.2017, the charges leveled against the 6 VS,J wp_7845_2022 petitioner are that he demanded and accepted an amount of Rs.2,00,000/- as illegal gratification from Shaik Abdul Khadar Jilani to run matka company in Yerraguntla Town and demanded and collected an amount of Rs.1,20,000/- as monthly mamools from Shaik Abdul Khadar Jilani to run matka company, and also involved in civil dispute pending between Shaik Mohammad Rafi and G.Ram Prasad Reddy and collected illegal gratification of Rs.3,00,000/- from Shaik Rafi.
Thereafter, the petitioner was reinstated into service by respondent No.4 vide proceedings dated 31.01.2017 and inquiry officer was appointed. After due enquiry, the inquiry office submitted his report and in response to the inquiry report, the petitioner submitted explanation. Considering the inquiry report, vide proceedings in C.No.C2/OEPR-13/2017 dated 10.09.2020 the authorities imposed the penalty of withholding of increments for a period of two years without cumulative effect on future increments and pension, which order was further confirmed by respondent No.3.
As can be seen from the material on record, the petitioner demanded and accepted illegal gratification from Shaik Abdul Khader Jilani to run Matka company. In my view, 'Matka' and 7 VS,J wp_7845_2022 'Gambling' are the menaces which have ruined many lives and families. Therefore, curbing these social evils from society is necessary. It is one of the prime responsibilities of the Police and the Police are taking stringent steps to curb these menaces. But, some of the Police Officers, like the petitioner, are conniving with the anti-social elements just for the sake of money, encouraging and supporting them for continuing their unlawful activities.
The petitioner who is working as a Law Enforcing Officer, instead of taking steps to curb the social evils, had encouraged unlawful activities for his monetary benefits. Therefore, to uphold an iron hand on such corruption activities, it is necessary to deal with the corrupt officers like the petitioner firmly by initiating suitable disciplinary action, and leaving the corrupt officer like the petitioner free merely on the ground that the private witnesses who initially deposed all the corruption activities of the petitioner had turned hostile and thereafter deposed in his favour as they were successfully managed by the petitioner, is not sustainable. However, the disciplinary authority has taken lenient view and imposed punishment of withholding of increments for a period of two years only without cumulative effect on future increments and pension.
8
VS,J wp_7845_2022 Rule 40 of the CCA Rules deals with "revision", which is as follows:
40. Revision: - (1) Notwithstanding anything contained in these rules
(i) the Government, or
(ii) in the case of a Government servant serving in a depart. office under the control of a head of department such head of the directly under the Government; or
(iii) any appellate authority, or
(iv) any other authority specified in this behalf by the Government by a general or special order and within such time as may be prescribed in such general or special order, may where a revision petition is preferred by the Government servant within one year of the date of receipt by him of the order sought to be revised, and in cases where no such revision petition is preferred within four years of the date of the order proposed to be revised, either suo motu or otherwise and after calling for the records of any inquiry and examination, revise and order of penalty made under these rules or under the rules repealed by Rule 45, after consultation with Commission where such consultation is necessary. The said authority may exercise the power suo motu within four years from the date of issue of order of penalty by the competent authority or within one year of the date of receipt of the petition either confirm or reduce or set aside the order of penalty or any other order already issued, and where it is proposed to enhance the penalty, such authority may exercise the power within four years from the date of receipt of the petition and revise any order made under Rule 45 after consultation with the Commission where such consultation is necessary, and
(a) confirm, modify or set aside the order; or 9 VS,J wp_7845_2022
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed, or
(c) remit the case to the authority which made the order or to any other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or
(d) pass such other orders as it may deem fit :
Provided that the Special Inspector General of Police (Law and Order) or the Deputy Inspector General of Police or an officer of the corresponding rank may, of his own motion or otherwise, revise an order passed on appeal by the authority subordinate to him;
Provided further that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the major penalties specified in Rule 9 or to enhance the minor penalty imposed by the order sought to be revised to any of the major penalties and if an inquiry under Rule 20 has not already been held in the case, no such penalty shall be imposed except after inquiring in the manner laid down in Rule 20, subject to the provisions of Rule 25 and except after consultation with the Commission, where such consultation is necessary:
Provided also that subject to the provisions of Rule 25, the revising authority shall:
(a) where the enhanced penalty which the revising authority propose to impose, is the one specified in clause (iv) of Rule 9 and falls within the scope of the provisions contained in sub-rule (2) of the Rule 22; and
(b) where an inquiry in the manner laid down in Rule 20 has not already been held in the case.10
VS,J wp_7845_2022 Itself hold such inquiry or direct that such inquiry be held in accordance with the provisions of Rule 20, and thereafter, on a consideration of the proceedings of such inquiry, pass such orders as it may deem fit;
Provided further that no power of revision shall be exercised by the head of department, unless
(i) the authority which made the order in appeal, or
(ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him.
(2) No proceeding for revision shall be initiated or commenced until after
(i) the expiry of the period of limitation for preferring an appeal, or
(ii) the disposal of the appeal, where any such appeal has been preferred; the Government Servant may however prefer a revision petition for revising the order or penalty within a period of one year after the appeal petition to the prescribed appellate authority is disposed off.
(3) An application for revision shall be dealtwith in the same manner as if it were an appeal under these rules. Rule 41 of the CCA Rule deals with "review", which is as follows:
41. Review: - The Government may exercise the power to review any order passed under these rules only on the reference made by the Head of the Department when any new material or evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case, has come, or has been brought, to its notice :
Provided that no order imposing or enhancing any penalty shall be made by the Government unless the Government servant concerned has been given reasonable opportunity of making a representation against the penalty proposed or where it is 11 VS,J wp_7845_2022 proposed to impose any of the major penalties specified in Rule 9 or to enhance the minor penalty imposed by the order sought to be reviewed to any of the major penalties and if an inquiry under Rule 20 has not already been held in the case, no such penalty shall be imposed except after inquiring in the manner laid down in Rule 20, subject to the provisions of Rule 25 and except after consultation with the Commission where such consultation is necessary.
Provided further that the Government shall exercise the power of review within a period of three years.
As per Rules 40 and 41 of CCA Rules, the petitioner can prefer revision or review. It appears that the petitioner approached this Court without availing alternative remedy of revision or review as available under Rule 40 and 41 of CCA Rules.
No doubt, when an effective, efficacious, statutory remedy is available, normally the Courts would not entertain writ petition under Article 226 of the Constitution of India.
In "Genpact India Private Limited v. Deputy Commissioner of Income Tax and another1" the Division Bench of the Apex Court held that, "when a statutory remedy is available under the statute, the Court would not normally entertain the writ petition against assessment order. The Apex Court finally concluded that, if the submission is accepted, every time the 1 (2019) 311 CTR (SC) 737 12 VS,J wp_7845_2022 dispute will be required to be taken up in proceedings such as a petition under Article 226 of the Constitution, which normally would not be entertained in case of any disputed questions of fact or concerning factual aspects of the matter. The assessee may thus, not only lose a remedy of having the matter considered on factual facets of the matter but would also stand deprived of regular channels of challenges available to it under the hierarchy of fora available under the Act."
In "Commissioner of Income Tax and others v. Chhabil Dass Agarwal2" the Apex Court held as follows:
"Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See State of U.P. v. Mohd. Nooh3, Titaghur Paper Mills Co. Ltd. v. State of Orissa4, Harbanslal Sahnia v. Indian Oil 2 (2014) 1 SCC 603 3 AIR 1958 SC 86 4 (1983) 2 SCC 433 13 VS,J wp_7845_2022 Corpn. Ltd5 and State of H.P. v. Gujarat Ambuja Cement Ltd6) In view of the law declared by the Apex Court, when a statutory remedy is available, the Court may not normally entertain petition under Article 226 of the Constitution of India which is purely discretionary in nature.
In view of my aforesaid discussion, the writ petition is liable to be dismissed.
Accordingly, the writ petition is dismissed. No costs. However, liberty is granted to the petitioner to file revision or review before appropriate forum.
Miscellaneous petitions pending, if any, in this Writ Petition shall stand closed.
______________________ JUSTICE V.SUJATHA 13.10.2023 Ksp 5 (2003) 2 SCC 107 6 (2005) 6 SCC 499