Telangana High Court
G.Sudhakar Reddy vs The State Of Telangana on 21 April, 2020
Equivalent citations: AIRONLINE 2020 TEL 49
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
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HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.AMARNATH GOUD
IA No.2 of 2019
AND
IA.No.1 of 2020
IN/AND
WRIT PETITION NO.2 of 2019
O R D E R:(Per Hon'ble Sri Justice M.S. Ramachandra Rao) The petitioner was directly recruited as Civil Sub-Inspector in 1974 and was promoted as Inspector of Police on 24.9.1983. He retired on 30.9.2009 on attaining the age of superannuation. The background facts
2. On 18.11.1997, petitioner was placed under suspension pending a disciplinary enquiry after he was involved in an ACB trap case.
3. On 18.4.1998, petitioner's suspension was revoked and he was reinstated into service. On 6.8.1998, he was again suspended on the same allegations. On 1.6.2002, the suspension was again revoked and he was reinstated into service. His case was referred to the Tribunal for Disciplinary proceedings. On 29.8.2002, the said Tribunal fully exonerated him from the charges. On 215.9.2004, the then State of A.P. disagreed with the Tribunal's proceedings and dismissed him from service.
4. Petitioner approached the A.P. Administrative Tribunal against the said action and the Tribunal on 5.11.2005 reinstated the petitioner into service and directed that the entire period of suspension till dismissal would be counted for purpose of seniority. Accordingly G.O.rt.No.102 dt.21.1.2006 was issued by the then State Government of A.P. 2
5. The petitioner was again suspended on 3.4.2007 from service on charge that he forged signatures of his superior officers in his ACRs for the period of suspension and got them inserted in his personal file in First week of February, 2003 in the Office of the DIG, Hyderabad.
6. The present Writ Petition relates to this event only and not to the prior events.
7. It is contended by the respondents that petitioner was placed under suspension from 6.8.1998 to 27.6.2002; on 4.4.2003, the Joint Commissioner of Police ( Administration), Hyderabad city mentioned in the personal docket sheet of the petitioner that from 31.3.1998 to 31.3.2002, petitioner's Annual Confidential Repots (ACRs) were not available as he was under suspension; that he was posted in the APSRTC Vigilance wing as Inspector of Police; The Chief Office called for nominal roll, defaulter sheet and personal files of Inspectors of Police fit to act as DSP for the year 2003-04 from all the range officers of the State; coming to know of preparation of this list, the petitioner, in first week of February 2004 had handed over the ACRs to one P.Narasimha, Camp Clerk to DIG, Hyderabad by forging the signatures of officers i.e reporting, reviewing and accepting authorities as genuine for the years ending with 31.3.1999, 31.3.2000, 31.3.2001 and 31.3.2002; that the said P.Narasimha filed the said ACRs in petitioner's personal file and sent to the Chief Office along with other personal files; after scrutiny, the personal files were returned for rectification of irregularities by mentioning in the remarks column against the petitioner that the ACRs were not available as per the docket sheet from 31.3.1999 to 31.3.2003; the Chief Office asked the Deputy Inspector General for thorough probe and report by enclosing copy of anonymous 3 petition against the petitioner; that accordingly enquiry was conducted recommending to prosecute petitioner besides disciplinary action.
8. Cr.No.2/2005 under Sec.468,471 IPC was registered against him in the CID, PS and he was arrested on 29.3.2007.
9. Disciplinary proceedings were initiated against him by issuing a charge memo to him on 22.12.2009 stating that he exhibited lack of integrity and conduct by forging signatures of his superiors , prepared ACRS for his suspension period and was involved in the above Cr.No.2/2005.
10. Later a Charge sheet was filed in the Criminal Court in CC No.782 of 2007 before the VI Additional Chief Metropolitan Magistrate, Hyderabad but petitioner was acquitted on 22.11.2012.
11. In the meantime, the petitioner retired from service on 30.9.2009 even prior to issuance of charge memo in the disciplinary proceedings and no pension or other benefits have been released to him till date for more than 10 years till date. Not even provisional pension has been released to petitioner by the 1st respondent till date.
12. Though an appeal Crl.A.No.757 of 2014 was filed by the State against the said acquittal of the petitioner, it was dismissed by the IV Addl.Metropolitan Sessions Judge, Hyderabad.
13. In the disciplinary enquiry, the SDPO, Nalgonda was appointed as Enquiry Officer and he gave an enquiry report that the charges against the petitioner were proved.
14. The same was supplied to the petitioner and he gave his response thereto on 5.2.2013 stating that he was acquitted by the Criminal Court and that no further action be taken against him since he retired from service. He 4 also relied on the decision of the Supreme Court in GM Tank v. State of Gujarat1.
15. The respondents felt that, in view of the retirement from service of the petitioner on 30.9.2009, the State Government was competent to dispose the departmental enquiry under Rule 9 of the AP Revised Pension Rules,1980.
16. The State of Telangana (1st respondent) in Memo.No.6315/Ser.I/A1/2013 dt.15.9.2015, after examining the findings of the enquiry officer, took a provisional decision to impose the penalty of 5% cut in pension for 2 years on the petitioner and asked petitioner to submit his explanation.
17. Petitioner then submitted his explanation thereto.
18. On 10.11.2015, the 1st respondent also sought concurrence of the State Public Service Commission vide letter No.6315/Ser.I/A1/2012 dt.10.11.2015. The latter gave it's concurrence allegedly on 28.3.2016 to the State Government.
19. In the mean time, petitioner filed the present Writ Petition. The prayer in the Writ Petition
20. In this Writ Petition, the petitioner has sought a Writ of Mandamus to declare the inaction of the respondents in not granting him promotion to the post of Deputy Superintendent of Police, Addl.Superintendent of Police and Superintendent of Police as arbitrary, illegal and unreasonable and violative of Art.14,16 and 21 of the Constitution of India and seeks a direction to the respondents to promote him to the said posts as per the approved panels vide G.O.Ms.No.187 dt.29.11.2018, G.O.Ms.No.180 1 (2006) 4 SCC 740 5 dt.16.11.2018 and G.O.Ms.No.200 dt.14.12.2018 respectively with consequential benefits of fixation of pay, payment of arrears, fixation of pension and payment of pensionary dues etc.
21. He also sought a declaration that the Memo No.6315/ser.I/A1/2013 dt.15.9.2015 issued by State of Telangana rep.by it's Principal Secretary , Home (Ser.I) Department, Hyderabad (the 1st respondent) proposing to withhold 5% cut in pension for 2 years as arbitrary, illegal and unreasonable and violative of Art.14,16 and 21 of Constitution of India and to set it aside.
G.O.Rt.No.131 Home (Ser.I) Department dt.3.3.2020
22. After filing of the Writ Petition, G.O.Rt.No.131 Home (Ser.I) Department dt.3.3.2020 was issued by the 1st respondent imposing punishment of withholding 5% cut in pension for 2 years on the petitioner on the ground that certain charges made against him when he had worked as Inspector of Police in the erstwhile Nalgonda District were proved in a disciplinary enquiry conducted against him.
IA.No.1 of 2020
23. Petitioner then filed IA.No.1 of 2020 seeking to amend the prayer in the Writ Petition by challenging G.O.Rt.No.131 Home (Ser.I) Department dt.3.3.2020 issued by the 1st respondent in place of Memo No.6315/ser.I/A1/2013 dt.15.9.2015 proposing to withhold 5% cut in pension for 2 years which was earlier challenged in the Writ Petition. 6
24. The issuance of the said G.O.Rt.131 Home (Ser.I) Department dt.3.3.2020, being an event which occurred after filing of the Writ Petition, the said IA No.1 of 2020 is allowed.
25. Since the validity of the said G.O Rt has to be tested on the basis of it's contents and cannot be supplemented by new reasons in the form of a counter affidavit, as per the decision of the Supreme Court in Mohinder 2 Singh Gill v. Election Commission , we do not deem it necessary to permit the respondents to file an additional pleading supporting the contents of the said G.O.Rt.
I.A.No.2/2019
26. The counsel for the petitioner filed this application to bring on record the inquiry report submitted by the enquiry officer in the disciplinary enquiry initiated against him.
27. This document being a very crucial document necessary to decide this case, we allow IA No.2 of 2019.
Contentions of counsel for petitioner:
28. Counsel for the petitioner contended that the order imposing punishment of cut in pension of 5% on petitioner for 2 years vide G.O.Rt.No.131 Home (Ser.I) Dept dt.3.2.2020 passed by the 1st respondent merely states that after careful examination of the matter it decided to impose the said punishment on petitioner; that there is no application of mind by the 1st respondent to the pleas of the petitioner; that it did not consider the decision in GM Tank ( 1 supra) and other decisions on the 2 1978 (1)SCC 407 7 point; that no reasons are mentioned in the said GORt in support of it's decision; and even otherwise the said action is perverse, unreasonable and violative of Art.14,16 and 21 of the Constitution of India.
29. He also contended that the findings of the enquiry officer in the enquiry report are perverse, based on no evidence, arbitrary and unreasonable; and the 1st respondent, in the facts and circumstances of the case, is not justified in accepting it and issuing G.O.Rt.No. 131 Home (Ser.I) Dept dt.3.2.2020, imposing a cut in petitioner's pension.
30. He contended that the respondents had withheld the pension and other benefits of the petitioner totally till date though petitioner retired from service in 2009 on the pretext of pendency of criminal case and disciplinary proceedings against him, that this action is per se arbitrary and illegal as pension is not a bounty but a right of any Government service and if the proposal of the 1st respondent itself since 2015 was to withhold only 5% of the pension for only 2 years, the 1st respondent cannot withhold the entire pension and other benefits as well as it has done.
31. Counsel for the petitioner also drew the attention of the Court to the decision in the CC No.782/2007 acquitting the petitioner, and the judgment in Crl.A.No.757 of 2014 confirming the said acquittal and contended that petitioner, having been given a clean acquittal ( in contradistinction to an acquittal on the basis of reasonable doubt) , the respondents ought not to have imposed the punishment of cut in pension of 5% on petitioner for 2 years and ought not to have denied him the promotions claimed in the Writ Petition.
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32. He also relied on the counter affidavit filed by the State of Andhra Pradesh ( the 4th respondent in the Writ Petition) which stated that the said State is competent to finalise the seniority of person in the feeder category of Inspectors of Police (Civil) as per the common order dt.19.9.2017 of this Court in WP.No.9654/2016; that it had prepared such rectified Statewide integrated seniority list vide G.O.Ms.No.153, Home (Ser.I) Dept dt.5.10.2018; that based on it, combined final seniority list of DSPs( Civil) was issued vide G.O.Ms.no. 187 Home (Ser.I) Dept dt.29.11.2018; that thereafter seniority lists of Addl SP (Civil) and SP (NC) were issued vide G.O.Ms.No.197 Home (Ser.I) Dept dt.12.12.2018 and G.O.Ms.No.200 Home (Ser.I) Dept dt.14.12.2018 and the petitioner's placement in that revised seniority list is as under and it has already promoted him notionally to the above ranks from the following dates:
NOTIONAL RANK DATE OF PROMOTION Insp. Of Police 11-4-1984 DSP (Civil) 1-8-1998 Addl SP (Civil) 23-7-2005 SP (NC) 1-9-2008
33. He also pointed out that apart from setting aside of G.O.Rt.No.131 Home (Ser.I) Dept dt.3.2.2020 , the petitioner should also get the promotions sought by him as even in the counter affidavit filed by the 1st 9 respondent it is admitted at para 11 that all Government Orders on seniority in categories of Inspectors/ DSP/ Addl.SP/ SP (NC) were issued by the State of Andhra Pradesh (4th respondent) and that the said respondent is alone competent on the eligibility of the petitioner for notional promotion in all categories as assigned by it notwithstanding the disciplinary cases against the petitioner.
34. The counsel for petitioner relied on G.M.Tank ( 1 supra), Sulekh Chand and Salek Chand v.Commissioner of Police and others3, State of A.P v. N.Radhakishan4, M.Paul Anthony v. Bharat Gold Mines Ltd and another5, P.V.Mahadevan v. MD, TN Housing Board6 and a Division Bench decision of this Court in D.Srinivas v. Govt. of A.P.7 in support of his submissions.
The stand of the 1st respondent.
35. Sri S.Sharat Kumar, Special Government Pleader appearing for the 1st respondent contended that the notional seniority assigned to petitioner by the State of A.P. in the various Government Orders mentioned above is proper, but the decision in the G.O.Rt.No.131 Home (Ser.I) Dept dt.3.2.2020 is correct and proper and does not warrant any interference by this Court.
36. According to him, the petitioner was found guilty in the disciplinary enquiry of forging signatures of his superior officers, and 3 (1994) 3 SCC 674 4 (1998) 4 SCC 154 5 (1993) 3 SCC 679 6 (2005) 6 SCC 636 7 2013 (4) ALT 1 (DB) 10 irrespective of what findings have been recorded in the Criminal Court, the petitioner is not entitled to any relief in the Writ Petition.
37. He contended that in view of the pendency of the criminal case and the departmental proceedings against the petitioner from 18-11-1997 onwards till petitioner's retirement, his case was not considered for inclusion in the seniority list of DSP (Civil) and next higher ranks along with his juniors.
38. But he could not assign any valid reason for withholding the entire pension and other benefits due to the petitioner till date when the proposal of the 1st respondent in the Show Cause notice No.6315/Ser.I/A1/2013 dt.15-9-2015 issued by the 1st respondent was only to impose punishment of cut in 5% of the pension payable to petitioner. The 1st respondent ought to have released the other benefits and also 95% of the pension payable to the petitioner on his retirement.
39. According to him the purpose of the Criminal prosecution and the disciplinary proceedings is different; and that due to the pendency of disciplinary proceedings, petitioner's pension and other benefits have also been with held.
40. He relied on Deputy Inspector General of police and another v. S.Samuthiram8 , unreported decisions of the Supreme Court of India in State of Bihar v. Phulpari Kumari9 , Shashi Bhusan Prasad v. Inspector General, Central Industrial Security Force and others10 and 8 (2013) 1 SCC 598 9 Civil Appeal No.8782 of 2019 decided on 6.12.2019 10 Civil Appeal No.7130 of 2019 dt.1.8.2019 11 Uttarakhand Transport Corporation and others v. Heera Singh Parihar11.
The consideration by the Court
41. It is not in dispute that the charge against the petitioner in the Criminal Case was that petitioner was trapped by the ACB for taking a bribe of Rs.3,000/- on 15.11.1997 and he was placed under suspension from 6.8.1998 to 27.6.2002; on 4.4.2003, the Joint Commissioner of Police ( Administration), Hyderabad city mentioned in the personal docket sheet of the petitioner that form 31.3.1998 to 31.3.2002, petitioner's Annual Confidential Repots (ACRs) were not available as he was under
suspension; that he was posted in theAPSRTC Vigilance wing as Inspector of Police; The Chief Office called for nominal roll, defaulter sheet and personal files of Inspectors of Police fit to act as DSP for the year 2003-04 from all the range officers of the State; coming to know of preparation of this list, the petitioner in Firstt week of February,2004 had handed over the ACRs to one P.Narasimha, Camp Clerk to DIG, Hyderabad (examined as PW3 in the CC)by forging the signatures of officers i.e reporting, reviewing and accepting authorities as genuine for the years ending with 31.3.1999, 31.3.2000, 31.3.2001 and 31.3.2002; that PW3 filed the said ACRS in petitioner's personal file and sent to the Chief Office along with other personal files; after scrutiny the personal files were returned for rectification of irregularities by mentioning in the remarks column against the petitioner that the ACRs were not available as per the docket sheet from 31.3.1999 to 31.3.2003; the Chief Office asked the Deputy Inspector general for thorough probe and report by enclosing copy of anonymous 11 Civil Appeal No.9520 of 2019 dt. 18.12.2019 12 petition against the petitioner; that accordingly enquiry was conducted recommending to prosecute petitioner besides disciplinary action.
42. In the disciplinary enquiry initiated against the petitioner also the charge was that he exhibited lack of integrity and conduct by forging signatures of his superiors , prepared ACRS for his suspension period and was involved in the Cr.No.2/2005.
43. Thus both the Criminal case and the disciplinary enquiry are based on the same set of facts and relate explicitly to alleged forging by petitioners of signatures of his superiors in his ACRs for the period 31.3.1999 to 31.3.2003 during which time he was under suspension, which period of suspension commenced admittedly 6.8.1998 and continued to 27.6.2002.
44. The trial Judge in CC No. 782 of 2007 after framing charges under Sec.420, 468 r/w 471 IPC admittedly acquitted the petitioner by judgment dt.22.11.2012 holding as under:
"13. On a careful analysis of the above entire evidence on record it is clear that the prosecution case and evidence is not consistent, convincing and not appearing to be a reliable one and a probable one. When admittedly the accused was under
suspension for the period from 6.8.1998 to 21.1.2003 and when the ACRs will not be maintained for the suspension period how they will be prepared and what is the benefit from the same is not understandable. More-over the personal file of accused is with Commissioner of Police till 17.2.2004 on which date it was sent to DIG office which is admitted clearly. But P.W.3 clearly states that accused handed over to him the disputed ACRs in the first week of February, 2004 and on the same day he inserted the same in the personal file of accused. When the personal file of accused is in the office of Commissioner of police till 13 17.2.2004 how P.W.3 inserted the alleged disputed ACRs in the personal file of the accused in the first week of February, 2004 in the DIG office is not properly explained by prosecution and it is appearing to be a quite unreliable one and improbable one.
As per the evidence on record and as per general procedure the ACRs have to be sent to DIG office by the superior of individual concerned in a sealed cover, i.e., Managing Director of APSRTC in this case. The said cover has to be opened by DIG. But that is not done. How P.W.3, a responsible is not issued even a memo for his irregular behaviour and dereliction and misconduct of receiving alleged ACRs from incumbent and inserting in the concerned file is not explained by the prosecution. If it is really done by the accused and P.W.3 the officers concerned should have taken necessary steps against P.W.3 also. The evidence of P.W.3 that he received ACRs from the accused though he did not have prior acquaintance with him in appearing to be improbable one and it cannot be accepted by an ordinary prudent man. More-over, the evidence of P.W.3 that he received ACRs in the first week of February, 2004 and on the same day of receipt he inserted them in the personal file in their office though it is with office of Commissioner till 17.2.2004 is appearing to be quite improbable one.
14. According to P.W.3 that he did not produce the ACRs before the then DIG and he did not inform to DIG about inserting Ex.P-15 ACRs in the personal file of the accused. If really the accused handed over such ACRs to P.W.3 and if really P.W.3 received them in good faith as deposed to by him he should have sincerely informed to his officer (DIG) P.W.6 immediately and he should not have remained silent till the file was returned by the Chief office for rectification of defects. Such silence on the part of P.W.3 gives rise to suspicion about the genuineness of the prosecution case.
15. The alleged enquiry conducted by P.W.4 on the information and details furnished by the camp clerk is behind the back of the accused. The alleged anonymous letter said to have been sent by the chief office while returning the personal files is not 14 produced by the prosecution. The prosecution has to prove its case clinchingly and beyond reasonable doubt. The enquiry report Ex.P-20 pointed out that some un known others are also involved and the authorship of accused in respect of forged documents could not be established. The investigating agency did not trace out the said 'un known others' involved in the alleged fabrication of ACRs.
16. Expert evidence is a weak piece of evidence. The Investigating officer did not conduct any panchnama nor prepared any seizure report for collecting documents Exs.P-2 to P-29 and Ex.P-32 to P-66 and he did not examine any witness to show the writings and signatures in Ex.P-21 belong to accused. Therefore, there is no independent evidence for collection of disputed signatures and writings and admitted signatures and writings and standard signatures and writings as argued on behalf of the accused. There is no specific evidence to show that the standard signatures and writings were contemporaneous signatures and writings pertaining to the period of disputed ones. There is no evidence to show that Q10 to Q21 disputed signatures of ACPs, DCPs and CPs concerned on the alleged fabricated ACRs were made by the accused. Simply because the expert opined that the person who wrote signatures and writings S1 to S9 also wrote Q1 to Q9 signatures and writings it cannot be said that the accused made those signatures and wrote those writings in the absence of independent evidence particularly in view of the inconsistent and un-reliable evidence in this case. Simply because the disputed signatures on the alleged fabricated ACRs do not belong to the officers concerned it cannot be said that accused made them, in view of the expert evidence itself that it is not possible to fix authorship. The evidence on behalf of prosecution regarding availability of alleged forged ACRs in the personal file as on the date when it was sent to Chief office from DIG office is also not consistent as referred to earlier as P.W.6 deposed that he received Ex.P-10 file with more pages than he sent to Chief office and he is not sure whether ACRs for suspension period were enclosed to Ex.P-10 file and returned to their office. It is contended for the 15 accused that there is no legally admissible prosecution sanction order. It is contended for prosecution that sanction order is not necessary as fabrication of ACRs is not in discharge of official duties. But however the prosecution did not prove its case that the accused fabricated ACRs. Hence, sanction order is not having much importance in this case." (emphasis supllied)
45. The appellate Court while dismissing the Crl.A No. 757 of 2013 filed by the State on 24.7.2014 held:
"... ... it is evident that this accused was under suspension from 6-8-1998 till 27-6-2002. It is the case of prosecution and the evidence of all its witnesses that personal file of police officers are maintained and periodically, at the end of each financial year, Annual Confidential Reports is prepared. How they are prepared, how they are maintained are governed by standard orders of Government. According to prosecution witnesses, it is a fact that whenever a police officer is under suspension the period during which he underwent such suspension would not be covered by ACRs. This fact is not challenged by defence. Ex.P- 10 is the personal file of accused. Whole of the problem arose as per page No.2 of its index. From 31-3-1998 till 31-3-2002 it is recorded not available since the individual was under
suspension. These facts are not in dispute. However, according to version of prosecution there came into this record 4 ACRs of accused and it was the handy work of accused and those are the forged and fabricated documents. Exs.P-15 to P-19 are these ACRs. On their face, they speak about those four years, during which time the accused was under suspension. All witnesses said that every one knows that no ACRs are initiated for any officer under suspension. This accused who was a police officer for more than 24 years by then he must also be knowing this fact very well. The story of prosecution is that to get promotion he inserted four ACRs. According to prosecution he was not given any promotion as Deputy Superintendent of Police and no witness deposed about even considering his candidature for that promotion. Thus, cheating as it is did not take place, since 16 no one said about Government believing these ACRs and granting any promotion to this accused. Therefore, charge of cheating is not there on facts and one has to see whether there was an attempt on the part of accused in cheating the Government."
"... ...The question here is, did the accused sign in the name of those officers or did he engage service of another person to do this nefarious act. Evidence of Pw-16 and Ex.P-30 do not indicate comparison of handwriting of accused as against the hand writings and signatures of those superior police officers which I have referred to available on the disputed documents. Why was it not done must be known to prosecution but not explained. The only inference from this dimension is that prosecution was sure that accused did not write and put those signatures of those officers. Even Ex.P-20 inquiry report of Pw- 4 raised fingers saying, so many people in the department might have been involved in this. In that mess of the things that guess did not take any further course even in this case. Simply because, accused would be benefited by these ACRs, if one jumps to conclusion that accused must be understood to have procured those documents that could be against facts and probabilities and permissible logic. That argument of prosecution in the trial court which was continued in this appeal cannot be given much weight, for the simple reason among various other reasons, that this accused, who himself being a police officer having suffered departmental suspension and removal from service and fighting in Administrative Tribunal knew pretty well that there would not be any ACRs for the period for which he was under suspension. Prosecution cannot make a court of law to presume that the man like accused, who was trapped by ACB and who was suspended by then once would really venture to dupe his own Heads of Department by forging and fabricating their signatures. Thus, in the piquant situation in which the accused was placed and the absence of any opinion of handwriting expert to show connection between accused and the hand writings of his superiors on these ACRs 17 and absence of any witness who has seen this accused preparing such ACRs would clearly go to show that even if there is any strong suspicion against the accused that never materialized into a strong proof at trial. Therefore, trial judge was right in negativing the case."
46. Thus one of the main grounds for the acquittal of the petitioner by the Criminal Court is that no ACRs are initiated for any officer under suspension and the accused was well aware of this; and though the story of prosecution is that to get promotion he inserted four ACRs in his personal file, it is admitted that he was not given any promotion as Deputy Superintendent of Police and no witness deposed about even considering his candidature for that promotion. Thus, charge of cheating failed.
47. Secondly, the charge of forgery was held not proved as there was no comparison of handwriting of accused as against the hand writings and signatures of those superior police officers and this was not explained by the prosecution. Simply because, accused would be benefited by these ACRs, both Courts held that one cannot come to a conclusion that accused must be understood to have procured those documents.
48. Thirdly, the personal file of the petitioner was, even according to the prosecution witnesses, with Office of the Commissioner of Police till 17.2.2004 on which date it was sent to DIG office. But P.W.3 stated that accused handed over to him the disputed ACRs in the first week of February, 2004 and on the same day he inserted the same in the personal file of accused.
When the personal file of accused is in the office of Commissioner of Police till 17.2.2004, it was impossible for P.W.3 to insert the alleged 18 disputed ACRs in the personal file of the accused in the first week of February, 2004 in the DIG office.
Moreover, the evidence on record showed that the ACRs have to be sent to DIG office by the superior of individual concerned in a sealed cover, i.e., Managing Director of APSRTC in this case. The said cover has to be opened by DIG. But that was not done. How P.W.3 was not issued even a memo for his irregular behaviour and dereliction and misconduct of receiving alleged ACRs from incumbent and inserting in the concerned file was not explained by the prosecution.
49. Thus we find that there is a sound basis for acquittal on merits of the petitioner in the Criminal Case.
50. In Sulekh Chand and Salek Chand ( 3 Supra), the Supreme Court held that if the acquittal in the Criminal case is on merits , the necessity of a Disciplinary proceeding itself is obviated and the employee is entitled to be reinstated into service as if there is no blot in his service and his promotion cannot be denied by the DPC. It held :
" 2. ... We have perused the proceedings of DPC which would clearly show that the reasons which prevailed with the DPC were the prosecution under Section 5(2) of Prevention of Corruption Act and the departmental enquiry, against the appellant. It is not in dispute that the proposed departmental enquiry also is related to the selfsame offence under Section 5(2) of the Prevention of Corruption Act. The judgment acquitting the appellant of the charge under Section 5(2) became final and it clearly indicates that it was on merits. Therefore, once the acquittal was on merits the necessary consequence would be that the delinquent is entitled to reinstatement as if there is no blot on his service and the need for the departmental enquiry is obviated. It is settled law that though the delinquent official may get an acquittal on technical 19 grounds, the authorities are entitled to conduct departmental enquiry on the selfsame allegations and take appropriate disciplinary action. But, here, as stated earlier, the acquittal was on merits. The material on the basis of which his promotion was denied was the sole ground of the prosecution under Section 5(2) and that ground when did not subsist, the same would not furnish the basis for DPC to overlook his promotion. We are informed that the departmental enquiry itself was dropped by the respondents. Under these circumstances, the very foundation on which the DPC had proceeded is clearly illegal. The appellant is entitled to the promotion with effect from the date his immediate junior was promoted with all consequential benefits."(emphasis supplied) The manner of conduct of disciplinary enquiry:
51. Coming to the Disciplinary enquiry, the charge memo was issued to the petitioner on 22.12.2009 , though for the first time an enquiry officer (OSD, Nalgonda) was appointed on 21.7.2009 , later he was replaced by SDPO, Nalgonda on 22.12.2009.
52. Only on 10.12.2010, first notice of enquiry was served on the petitioner fixing the date of enquiry as 16.12.2010. Petitioner then asked for stopping of the disciplinary enquiry pending the disposal of the criminal case. He was then served two more notices of enquiry on 18.2.2011 and 1.12.2011 by the enquiry officer without giving any reply to petitioner's request for deferment of disciplinary enquiry. Only on 29.11.2011 and on 20.3.2012, petitioner was informed that enquiry would be held exparte if he did not attend.
53. Thereafter exparte enquiry was conducted against him and the enquiry report was submitted on 13.6.2012, more than 2 years after issuance of charge memo, while the CC No.782 of 2007 was still pending before the Criminal Court.
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54. The disciplinary enquiry was not commenced from allged act of the petitioner in February, 2004 till 22.12.2009 and the final order i.e G.O.Rt.No.131 Home (Ser.I) Department dt.3.3.2020, was passed 13 years after charge memo was issued, and that too more than 10 years after petitioner retired from service. Petitioner was seriously prejudiced by the said delay in initiating, conducting and completing it and issuing the final order G.O.Rt.No.131 Home (Ser.I) Department dt.3.3.2020.
55. P.Narasimha, the Camp Clerk of the Office of the DIG, who had deposed as PW3 in the Criminal Court was examined as PW1 in the disciplinary enquiry. Though 8 other witnesses were also examined, the main reliance placed by the enquiry officer to hold the petitioner guilty of the charge is (a) the evidence of PW1 and (b) an alleged statement said to be given by the petitioner in the preliminary enquiry on 5.2.2005.
56. No explanation is offered by this witness how he received the ACRs from the accused in the first week of February, 2004 when the personal file of the petitioner was, even according to the prosecution witnesses in the Criminal Case, with Commissioner of Police till 17.2.2004 on which date it was sent to DIG office; and how without any prior acquaintance with petitioner, he received them and inserted them in petitioner's personal file. More so, when it is admitted case that no ACRs would be prepared when an employee is under suspension and the petitioner, would be aware of this.
57. No expert witness was examined in the disciplinary enquiry to state that he compared the signatures of the superior officers with those of 21 the subject ACRs for the relevant periods and that he found them to be forgeries.
58. We therefore hold that findings of the enquiry officer are clearly perverse and no reasonable man could have come to the conclusion that petitioner had forged his superior officer's signatures in ACRs for period he was under suspension (when no such ACRs would in fact be prepared for the period of suspension) and then inserting them in his personal file in first week of February, 2004 ( which file was admittedly with the Commissioner of Police till 17.2.2004 on which date it was sent to DIG office- and hence an impossible thing to do).
59. As regards the statement allegedly made on 5.2.2005 in a preliminary enquiry by the petitioner allegedly admitting to forgery is quoted by the enquiry officer, which was not disclosed in the Criminal Case by the State, it is settled law that once a regular departmental enquiry is commenced evidence collected during preliminary enquiry loses all significance and cannot be relied upon and it would amount to a violation of principles of natural justice if it is done.
60. In Nirmala J. Jhala v. State of Gujarat12, the Supreme Court explained as under :
" 44. In Narayan Dattatraya Ramteerthakhar v. State of Maharashtra13 this Court dealt with the issue and held as under:
"... a preliminary inquiry has nothing to do with the enquiry conducted after issue of charge-sheet. The preliminary enquiry is only to find out whether disciplinary enquiry should be initiated against the delinquent. Once regular enquiry is held under the 12 (2013) 4 SCC 301 13 (1997) 1 SCC 299 22 Rules, the preliminary enquiry loses its importance and, whether preliminary enquiry was held strictly in accordance with law or by observing principles of natural justice of (sic) nor, remains of no consequence."
(emphasis added)
45. In view of the above, it is evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice."
61. Therefore the very reliance on alleged statement of petitioner in the preliminary enquiry in the enquiry report by the enquiry officer is a violation of principles of natural justice.
62. In the impugned G.O.Rt.No. No.131 Home (Ser.I) Department dt.3.3.2020 issued by the 1st respondent, there are no reasons assigned at all for imposing the punishment of cut of pension of 5% for 2 years at all. It merely recites the after careful examination of the matter, the 1st respondent decided to impose the said punishment. The obvious incongruities as pointed out by us above were clearly not noticed by the 1st respondent.
63. Any such order visiting civil consequences on the petitioner i.e cut in his pension, has to be supported by reasons and absence of reasons vitiates it.
64. In S.N. Mukherjee v. Union of India14, the Supreme Court explained why giving of reasons is important. It stated: 14
(1990) 4 SCC 594 23 "35. ... An important consideration which has weighed with the court for holding that an administrative authority exercising quasi-
judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority;
(ii) introduce clarity in the decisions; and (iii) minimise chances of arbitrariness in decision-making. In this regard a distinction has been drawn between ordinary courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by considerations of policy or expediency whereas an executive officer generally looks at things from the standpoint of policy and expediency.
36. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case 24 where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge."
65. Thus absence of reasons in the G.O.rt.No.131 Home (SER.I) Dept dt.3.2.2020 is a violation of principles of natural justice and the said order does not disclose any application of mind by the 1st respondent. It is accordingly vitiated.
66. In M.Paul Anthony ( 5 Supra), the Supreme Court had held that if the criminal case and the departmental proceedings were based on the same identical set of facts, as in the instant case, and the witnesses in both the disciplinary enquiry and the criminal case are the same, it would be unjust, unfair and oppressive to allow findings recorded at the ex-parte departmental proceedings to stand. It held:
" 34. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, "the raid conducted at the appellant's residence and recovery of incriminating articles therefrom". The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the enquiry officer and the enquiry officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and 25 rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand.
35. Since the facts and the evidence in both the proceedings, namely, the departmental proceedings and the criminal case were the same without there being any iota of difference, the distinction, which is usually drawn as between the departmental proceedings and the criminal case on the basis of approach and burden of proof, would not be applicable to the instant case."
67. This principle applies on all fours to the instant case.
68. Similar view was taken in G.M.Tank ( 1 supra) where also the Court elucidated the principle in the following terms:
"30....In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a departmental case against the appellant and the charge before the criminal court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge-sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts, namely, raid conducted at the appellant's residence, recovery of articles therefrom. The Investigating Officer Mr V.B. Raval and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.26
31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony case will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."( emphasis supplied)
69. In Shashi Bhusan Prasad ( 10 supra), cited by the Special Government Pleader, the decision in G.M.Tank (1 supra) was distinguished and not followed because the charges in the criminal case and departmental proceedings were different having no nexus/co- relationship and were based on different sets of facts and evidence. So a view was taken that acquittal in criminal proceedings would not absolve the appellant from liability in disciplinary proceedings. Therefore this decision does not help the State.
70. In Heera Singh Parihar (11 supra), there was no criminal case against the employee and in the facts of the said case, though the High Court granted relief to the employee, the Supreme Court reversed it and found fault with the High Court which had held that a disciplinary proceeding is 'quasi criminal'. The Supreme Court relied on the other evidence in the disciplinary enquiry though the complainant, on whose basis the enquiry was initiated, had turned hostile, and held that there was material to show that he was guilty of the charge of abusing the 27 complainant. This decision also, in our opinion, therefore cannot be of any help to the respondents.
71. In Phulpari Kumari ( 9 supra), the Supreme Court held that interference with orders passed pursuant to a departmental enquiry can only be in case of 'no evidence' and sufficiency of evidence was not within the realm of judicial review. It observed that the High court cannot re- appreciate evidence and take a view contrary to that of the disciplinary authority.
72. The broad principle laid down here is unexceptionable but 'no evidence' is not the only ground for judicial review of orders passed pursuant to disciplinary proceedings.
73. In Allahabad Bank v. Krishna Narayan Tewari15, the Supreme Court set out in brief the various grounds for interference with findings in a departmental enquiry in the following terms:
" 7. It is true that a writ court is very slow in interfering with the findings of facts recorded by a departmental authority on the basis of evidence available on record. But it is equally true that in a case where the disciplinary authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty-bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the enquiry officer or the disciplinary authority, non- recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in 15 (2017) 2 SCC 308 28 interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the disciplinary authority and the appellate authority. The respondent's case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defence has not been effectively rebutted by the appellant. More importantly the disciplinary authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the appellate authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the disciplinary authority. All told, the enquiry officer, the disciplinary authority and the appellate authority have faltered in the discharge of their duties resulting in miscarriage of justice.
The High Court was in that view right in interfering with the orders passed by the disciplinary authority and the appellate authority.(emphasis supplied)
74. In State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya16, also this principle was reiterated in the following terms:
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or 16 (2011) 4 SCC 584 29 if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations." (emphasis suopplied)
75. Thus perversity of reasoning of the disciplinary authority is a strong ground to set aside it's orders.
76. In Phulpari Kumari ( 9 supra), these decisions were not noticed by the Supreme Court.
77. Therefore we respectfully follow the above two decisions in preference to the decision in Phulpari Kumari ( 9 supra) and hold that even on ground of perversity, findings in disciplinary proceedings can be interfered with in exercise of powers under Art.226 of the Constitution of India.
78. In S.Samuthiram ( 8 Supra), cited by the Special government Pleader, the Supreme Court held that acquittal in criminal proceedings has no impact of disciplinary proceedings if acquittal is on account of flawed prosecution. Such is not the situation in the instant case. It held that in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement.
79. The decision of the Supreme Court in Sulekh Chand and Salek Chand ( 3 supra), which has taken a diametrically opposite view was not noticed in S.Samuthiram ( 8 Supra).
80. So in the instant case, we hold that :
(i) both the Criminal case and the disciplinary enquiry are based on the same set of facts and relate explicitly to alleged forging by 30 petitioners of signatures of his superiors in his ACRs for the period 31.3.1999 to 31.3.2003 during which time he was under
suspension, which period of suspension commenced admittedly 6.8.1998 and continued to 27.6.2002;
(ii) there is a sound basis for acquittal on merits of the petitioner in the Criminal Case;
(iii) The commencement of the disciplinary enquiry was delayed from February 2004 till 22.12.2009 ( when charge memo was issued to petitioner) i.e for more than 5 years and the final order i.e G.O.Rt.No.131 Home (Ser.I) Department dt.3.3.2020, was passed 11 years after charge memo was issued, and more than 10 years after petitioner retired from service. Petitioner was seriously prejudiced by the said delay in initiating, conducting and completing it passing of final order G.O.Rt.No.131 Home (Ser.I) Department dt.3.3.2020.
(iv) P.Narasimha, the Camp Clerk of the Office of the DIG, who had deposed as PW3 in the Criminal Court was examined as PW1 in the disciplinary enquiry; that the evidence of PW1 is the main basis of the enquiry report of the enquiry officer in the disciplinary enquiry; No explanation is offered by this witness how he received the ACRs from the accused in the first week of February, 2004 when the personal file of the petitioner was, even according to the prosecution witnesses in the Criminal Case, with Commissioner of Police till 17.2.2004 on which date it was sent to DIG office ( it would be impossible for the petitioner to do 31 what he is alleged to have done); and how without any prior acquaintance with petitioner, he received them and inserted them in petitioner's personal file. More so, when it is admitted case that no ACRs would be prepared when an employee is under suspension and the petitioner, would be aware of this. No expert witness was examined in the disciplinary enquiry to state that he compared the signatures of the superior officers with those of the subject ACRs for the relevant periods and that he found them to be forgeries;
(v) findings of the enquiry officer are clearly perverse and no reasonable man could have come to the conclusion that petitioner had forged his superior officer's signatures in ACRs for the period he was under suspension (when no such ACRs would in fact be prepared for the period of suspension) and then allegedly inserting them in his personal file in first week of February, 2004 ( which file was admittedly with the Commissioner of Police till 17.2.2004 on which date it was sent to DIG office- and hence an impossible thing to do).
(vi) The statement allegedly made on 5.2.2005 in a preliminary enquiry by the petitioner allegedly admitting to forgery is quoted by the enquiry officer, which was not disclosed in the Criminal Case by the State. It is settled law that once a regular departmental enquiry is commenced evidence collected during preliminary enquiry loses all significance and cannot be relied 32 upon and it would amount to a violation of principles of natural justice if it is done.
(vii) In the impugned G.O.Rt.No. No.131 Home (Ser.I) Department dt.3.3.2020 issued by the 1st respondent, there are no reasons assigned at all for imposing the punishment of cut of pension of 5% for 2 years. Thus there is total non-application of mind by the 1st respondent. The obvious incongruities as pointed out by us above were clearly not noticed by the 1st respondent. Any such order visiting civil consequences on the petitioner i.e cut in his pension, has to be supported by reasons and absence of reasons also vitiates it.
(viii) since the criminal case and the departmental proceedings were based on the same identical set of facts in the instant case, and the witnesses in both the disciplinary enquiry and the criminal case are the same, it would be unjust, unfair and oppressive to allow findings recorded at the ex-parte departmental proceedings to stand;
81. For all the aforesaid reasons, Writ Petition is allowed; the impugned order G.O.Rt.No.131 Home (Ser.I) Dept dt.3.2.2020 passed by the 1st respondent is set aside; a Writ of mandamus is issued to the respondents to notionally promote petitioner to the posts of Inspector of Police w.e.f.11.4.1984, DSP (Civil) w.e.f 1.8.1998, Addl SP (Civil) w.e.f 23.7.2005 and SP (NC) w.e.f.1.9.2008 as per the approved panels vide G.O.Ms.No.187 dt.29.11.2018, G.O.Ms.No.180 dt.16.11.2018 and G.O.Ms.No.200 dt.14.12.2018 respectively with consequential benefits of 33 fixation of pay, payment of arrears, fixation of pension and payment of pensionary dues etc; petitioner is declared entitled to full pension and other benefits treating his service as blemishless as if he retired as SP (NC) ; and the 1st respondent shall also pay him arrears of pension from the respective dates since his date of retirement and also other benefits payable to him from his date of retirement with interest at 9% till date of payment within six (06) weeks; and costs of Rs.50,000/- shall also be paid to him by the 1st respondent.
82. IA.No.2 of 2019 and IA No. 1 of 2020 are both allowed.
83. As a sequel, miscellaneous petitions pending if any, in this Writ Petition, shall stand closed.
____________________________ M.S.RAMACHANDRA RAO, J _______________________ T.AMARNATH GOUD, J Date: 21.04.2020 Vsv