Andhra Pradesh High Court - Amravati
N. Shankar Prasad vs The State Of Andhra Pradesh on 1 October, 2019
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
1
CMR, J.
W.P.No.8782 of 2019
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
Writ Petition No.8782 of 2019
ORDER:
This Writ Petition, under Article 226 of the Constitution of India, is filed by the petitioner to set aside the order dated 06.06.2019 of the Deputy Inspector General of Police, Eluru Range, West Godavari District, initiating departmental enquiry against the petitioner and appointing the Deputy Superintendent of Police, CCS, Kakinada, East Godavari District, as enquiry officer, without conclusion of trial in the criminal case initiated against the petitioner on the same set of facts.
Shorn of irrelevant details, facts germane to dispose of this Writ Petition may briefly be stated as follows:
The petitioner was appointed as a Reserve Sub-Inspector of Police in the year 2007. Since then he has been working without any blemish to the utmost satisfaction of the authorities concerned.
While he was working as Sergeant Traffic-I Police Station, Kakinada, East Godavari District, he was involved in a criminal case in Crime No.244 of 2016 registered on 17.12.2016 by Indrapalem Police Station for the offences punishable under Sections 120-B, 201, 203, 213, 217, 218, 221 of IPC and Section 69(A) of the Income Tax Act r/w.
Section 34 of IPC. It is alleged in the said criminal case that the petitioner along with his staff involved in corrupt practices 2 CMR, J.
W.P.No.8782 of 2019by conducting an illegal raid without the knowledge of the concerned authorities of law and order or any other superior officer and seized a bag containing Rs.25.00 Lakhs from A-1 to A-4 therein during the course of illegal transfer of money during the period of demonetisation of currency notes and in collusion with A-1 to A-3 he has let them off and only arrested A-4, who is the clerk of A-1 and A-2, and thereafter, handed over only cash of Rs.18.00 Lakhs out of the seized amount of Rs.25.00 Lakhs to concerned police who registered the crime and thereby committed the aforesaid offences. After completion of investigation, charge-sheet was also filed before the Court of V Additional Judicial Magistrate of First Class, Kakinada, East Godavari District, and the same is now pending trial before the trial Court.
The 2nd respondent placed the petitioner under suspension as per proceedings dated 20.12.2016 and thereafter his suspension was revoked on 09.04.2017 and at present he is working as Reserve Sub-Inspector, District Armed Reserve, Kakinada, East Godavari District.
The 2nd respondent also issued a charge memo dated 30.11.2018 to the petitioner which was served on him on 08.02.2019. Thereafter, the 2nd respondent initiated disciplinary proceedings against the petitioner and others and ordered for departmental enquiry against him and appointed the 3rd respondent as enquiry officer by his order dated 06.06.2019. The imputations of charge against the petitioner 3 CMR, J.
W.P.No.8782 of 2019in the said departmental enquiry are that the petitioner colluded with A-1 to A-3 who indulged in exchange of black money i.e. the demonetised notes with the new currency notes for wrongful gain and thereby violated Article 3(1)(2) of the Andhra Pradesh Civil Services (Conduct) Rules, 1964, furnished false information with regard to the offence committed by the offenders connected with Crime No.244 of 2016 of Indrapalem Police Station, with an intention to save the offenders, who are A-1 to A-3 therein, from punishment and unlawfully suppressed the facts. The petitioner did not handover the actual cash seized by him along with his factual report to the Station House Officer, Indrapalem Police Station and he facilitated the offenders to escape from the offence and thereby tarnished the image of the police in public view.
The petitioner has submitted his written statement and requested the disciplinary authority to keep the departmental proceedings pending till the criminal case registered against him on the same set of facts is disposed of on the ground that if the departmental enquiry is conducted during the pendency of the said criminal case that it would affect his defence in criminal case and as such, the departmental enquiry cannot be conducted during the pendency of the criminal case. However, the said request is not considered and he was called to attend the enquiry by the enquiry officer.
Therefore, he has filed the present Writ Petition to set aside the order dated 06.06.2019 ordering departmental 4 CMR, J.
W.P.No.8782 of 2019enquiry against him before conclusion of trial in the criminal case which was initiated on the same facts alleging that by proceedings dated 04.07.2019 the enquiry officer-3rd respondent is calling him to attend the enquiry on 10.07.2019, and it is illegal, arbitrary and opposed to the principles and guidelines laid down by the Apex Court as well as the High Courts.
When the Writ Petition came up for hearing, I have heard Sri Yalamanchili Seshagiri Rao, learned counsel appearing for the petitioner and the learned Government Pleader for Services appearing for respondents.
As can be gleaned from the facts emanating from the material available on record, it is evident that a criminal case was registered against the petitioner while he was working as Reserve Sub-Inspector of Police, Traffic-I Police Station, Kakinada, along with the constables working under him, in Crime No.244 of 2016 of Indrapalem Police Station on 17.12.2016. The petitioner is A-5 in the said crime. The constables working under him are A-6 to A8 in the said crime. A-1 to A-4 are the other principal offenders, who indulged in money transfer i.e. exchange of demonetised notes with new currency notes on 04.12.2016. After completion of investigation, charge-sheet was also filed against the above accused i.e. A-1 to A-8 on the file of the V Additional Judicial Magistrate of First Class, Kakinada, East Godavari District, for the offences punishable under Sections 409, 420, 120-B, 201, 5 CMR, J.
W.P.No.8782 of 2019203, 213, 217, 218, 221 of IPC and Section 69(A) of the Income Tax Act r/w. Section 34 of IPC.
The gravamen of the charge against the accused in the said criminal case is that on 28.11.2016, A.1-Karri Bhami Reddy contacted A.3-Medapati Sambi Reddy and informed him that a person known to him offered an amount of Rs.One Crore old currency notes for exchange with Rs.90.00 Lakhs of new currency notes and thereby asked A.3-Medapati Sambi Reddy to arrange for the said new currency of Rs.90.00 Lakhs. A-1 and A-3 secured Rs.20.00 Lakhs of new currency notes from their friends, relatives and known persons by availing hand loan and added a sum of Rs.4.00 Lakhs available with them and they borrowed a sum of Rs.2.00 Lakhs from one Pullaji and could arrange a total sum of Rs.26,06,000/- and A-3 prepared 29 bundles with white papers, which are in the size of Two Thousand Rupee new currency note, keeping Two Thousand rupee currency note on both sides of each bundle. Thereafter, he kept a sum of Rs.25.00 Lakhs in one bag and kept the 29 bundles prepared by him in another bag. A-3 informed A-1 that he secured the amount of Rs.84,50,000/- of new currency notes. Thereafter, as per the advice of A-1, A-3 on 04.12.2016 secured a car bearing No.AP 05 7688 which belongs to one Tadi Veera Raghava Reddy and on the evening of 04.12.2016 A-1 his brother A-2 and A-3 left Machavaram and they picked up A-4, who is the clerk of A-1 and A-2, at Narasapurapupeta and proceeded to exchange the new 6 CMR, J.
W.P.No.8782 of 2019currency notes with old currency notes. When they reached railway gate at Kovvada at about 6.30 P.M. via Pedapudi village, A-3 has driven the car into the vacant site as directed by A-1. When they reached vacant site, A-5 to A-8, who are the petitioner herein and his constables, came in civil dress, stopped them and checked the bags in the car and seized the bags with cash. A-1 had negotiations with A-5 to A-8 i.e. the petitioner and the constables and they entered into an agreement and A-5 to A-8 colluded with A-1 to A-3 and A-5, the petitioner only took A-4, who is the clerk of A-1 and A-2, into custody along with the car and seized bag containing cash of Rs.25.00 Lakhs and let off A-1 to A-3. Thereafter he has handed over only A-4 to the Station House Officer of Indrapalem Police Station and also handed over cash of only Rs.18.00 lakhs out of the said sum of Rs.25.00 Lakhs and did not hand over the remaining sum of Rs.7.00 Lakhs to the police. At the time of handing over A-4 to the Station House Officer, Indrapalem Police Station, the petitioner informed the S.H.O. that on receipt of information about money transfer that he along with the constables rushed to the spot as per the instructions of his superior officer, seized the cash and apprehended A-4 and stated that the other accused i.e. A-1 to A3 escaped.
Therefore, as the investigation revealed that A-5 along with his constables-A-6 to A-8 without any authority and without informing the concerned superior officer about receipt 7 CMR, J.
W.P.No.8782 of 2019of information, conducted search in civil dress unauthorisedly, seized Rs.25.00 Lakhs, handed over only Rs.18.00 Lakhs and let off A-1 to A-3 after colluding with them and thereby screened the offence committed by A-1 to A-3 and screened the offenders, who are A-1 to A-3, the above charge-sheet was filed against the petitioner and the constables who are A-5 to A-8 along with A-1 to A-4 who are the principal offenders, by the police.
While the said criminal case that was registered in December, 2016, is pending trial in the Court of law, simultaneously departmental enquiry was also ordered against A-5 i.e. the petitioner herein. The record reveals that a preliminary enquiry was ordered against the petitioner herein and report was submitted holding that the petitioner has indulged in the said acts of misconduct. So, regular departmental enquiry was ordered against him. Articles of Charge are framed against him and the same are communicated to the petitioner and he has also filed his written statement. Thereafter, the 3rd respondent was appointed as an enquiry officer and the petitioner was called to attend the enquiry on 10.07.2019. Precisely, the charge against him as per proceedings dated 30.11.2018 in Memo. No.38/P1/2016, is that the petitioner along with the constables reached the vacant site in civil dress on motorcycles and conducted a search in the car in which A-1 to A-4 are proceeding with demonetized notes and the new currency 8 CMR, J.
W.P.No.8782 of 2019notes and A-1 negotiated with the petitioner and the constables and they came to an understanding and A-1 handed over A-4 to the petitioner and his constables along with a bag containing Rs.25.00 Lakhs of new currency notes, the car, two cell phones and a cash counting machine and the petitioner handed over only Rs.18.00 Lakhs along with A-4, car, two cell phones and one cash counting machine to the Station House Officer, Indrapalem Police Station leaving the remaining three persons i.e. A-1 to A-3 and submitted a complaint with false information and a cash Rs.5.00 Lakhs was seized during the course of investigation from the house of a constable by name Chilla Parusuram Reddy, who is A-7, and that the petitioner and his constables conducted an illegal raid, even though they are not competent to conduct any such raid without the knowledge of the concerned authorities of law and order police station and thereby committed the following lapses:
"1. The RSI failed to inform to the concerned authorities such as SHO, Indrapalem or Inspector of Police, Kakinada Rural Circle, Sub-Divisional Police Officer, Kakinada or the Superintendent of Police, East Godavari District, Kakinada about the information received by him on 04.12.2016 regarding a cognizable offence which is the black money exchange transaction in demonetisation crises being taken place between Kakinada and Pedapudi Road and acted independently by forming a team with the traffic constables and conducted the raid in mufty without taking any assistance from the concerned Law and Order authorities on 04.12.2016 at 06.20 PM. Further, the RSI taking undue plea that he had furnished information to the Addl. Supdt. of Police, Operations for conducting raid, which was not maintainable as per the Law, as 9 CMR, J.W.P.No.8782 of 2019
the Addl. Supdt. of Police, Operations has no jurisdiction under Section 36 Cr.P.C., unless the Superintendent of Police, East Godavari District, Kakinada entrusted any task to him in the plain area. Hence, the RSI Sri N.Sankar Prasad took an undue plea to defend himself to cover up his misdeeds and conducted the raid independently to obtain he wrongful gain and thereby and violated the legal procedures for apprehending the offenders.
2. The RSI colluded and conspired with the black money exchange offenders by taking Rs.7.00 Lakhs for his wrongful gain and left the offenders Bhami Reddy, Ammireddy and Sambi Reddy with inexplicable source of cash which is illegal transaction of money to a tune of Rs.26.66 Lakhs in order to save the offenders from the punishable offence which amounts to criminal misconduct while discharging his duties.
3. The RSI furnished false information with regard to the offence committed by the offenders connected with Cr.No.244/2016 of Indrapalem PS with an intention to save the offenders Bhami Reddy, Ammi Reddy and Sambi Reddy from the punishment and wilfully suppressed the facts for his personal gain.
4. The RSI ought to have handed over the actual cash along with a factual report to the SHO, Indrapalem PS and should have obtained acknowledgment from him. But, the RSI failed to do so and went away in a hurried manner on the pretext to catch some more offenders to cover up his misdeed and to create the ambiguity with a view to escape from the liability.
5. The RSI himself facilitated the offenders to escape from the offence with an amount of Rs.1.66 lakhs and thereby tarnished the image of the Police in the public view."
Now the main grievance of the petitioner is that since the departmental enquiry was ordered on the same facts relating to the criminal case registered against him that if the enquiry is allowed to go on that his defence which is available to him in the criminal case has to be revealed in the departmental 10 CMR, J.
W.P.No.8782 of 2019enquiry and it causes prejudice to him in the criminal prosecution and as such, the order relating to the initiation of departmental enquiry is to be set aside. However, during the course of hearing the Writ Petition, the learned counsel for the petitioner confined his submissions only to stay the departmental enquiry till conclusion of the trial in the criminal case as continuation of the departmental enquiry would cause prejudice to his defence in the criminal case. He did not insist to set aside the order initiating the departmental enquiry as prayed for in the Writ Petition. In fact the order initiating departmental enquiry or disciplinary proceedings cannot be held to be bad in the given facts and circumstances of the case and the same cannot be set aside.
So, the only question to be considered is whether departmental enquiry is to be stayed till trial in the criminal case is concluded or not.
Now by catena of judicial precedents rendered by both the Apex Court and also various High Courts, including our High Court, the law is fairly well-settled that there is no bar or impediment for maintaining both the criminal case and the departmental enquiry simultaneously. However, when the criminal prosecution launched against the employee and the departmental enquiry ordered against him are based on same set of facts and when there are complicated questions of law and fact involved in the criminal case and on consideration of the charge against the employee in the criminal case and the 11 CMR, J.
W.P.No.8782 of 2019Articles of Charge framed against the employee in departmental enquiry, if it is found that if departmental enquiry is taken up simultaneously with the criminal trial, and if the defence available to the employee in the criminal case is revealed in the departmental enquiry before the trial in the criminal case is concluded and if the disclosure of his defence in the departmental enquiry may have the effect of causing prejudice to his defence in the criminal trial, then the Courts can order to stay the proceedings of the departmental enquiry till the trial in the criminal case is concluded. There is absolutely no controversy relating to this settled legal position.
Way back in the year 1960 in the case of Delhi Cloth & General Mills Ltd. v. Kushal Bhan1 the Apex Court observed that if the case is of grave nature or involves question of fact or law, which are not simple, it would be advisable for the employer to await the decision of the trial Court, so that the defence of the employee in the criminal case may not be prejudiced. In the case of Tata Oil Mills Co. Ltd. v. Workmen2, following the Delhi Cloth and General Mills Ltd1, it is held that it is desirable that if the incident giving rise to a charge framed against a workman in a domestic enquiry is being tried in a criminal court, the employer should stay the domestic enquiry pending the final disposal of the criminal case, as it would be unfair to compel the workman to disclose the defence which he may take before the criminal court. In 1 1960 (3) SCR 227 =AIR 1960 SC 806 2 AIR 1965 SC 155 = 1964 (7) SCR 555 12 CMR, J.
W.P.No.8782 of 2019the case of State of Rajasthan v. B.M. Meena3, the Apex Court held as follows:
"It would be evident from the above decisions that each of them starts with the indisputable proposition that there is no legal bar for both proceedings to go on simultaneously and then say that in certain situations, it may not be 'desirable', 'advisable' or 'appropriate' to proceed with the disciplinary enquiry when a criminal case is pending on identical charges. ....... The only ground suggested in the above decisions as constituting a valid ground for staying the disciplinary proceedings is "that the defence of the employee in the criminal case may not be prejudiced." This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. In our respectful opinion, it means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability', 'desirability' or 'propriety', as the case may be, has to be determined in each case taking into consideration all the facts and circumstances of the case. ........ One of the contending considerations is that the disciplinary enquiry cannot be - and should not be delayed unduly. So far as criminal cases are concerned, it is well- known that they drag on endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly ever reach a prompt conclusion. ......If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interests of administration and good government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings. It is not in the interest of administration. It only serves the interest of the guilty and dishonest....(emphasis added)"
Even in the other cases relied on by the learned counsel for the petitioner in Sri Balai Kumar Sanfui v. The State of West Bengal4 , the same proposition of law is laid down while considering the above judgment of the Apex Court. The other 3 AIR 1997 S.C. 13 4 Judgment of the Calcutta High Court (Appellate Side) in WPST 479 of 2013, dated 25.02.2014 13 CMR, J.
W.P.No.8782 of 2019judgment relied on by the learned counsel for the petitioner in Indian Overseas Bank v. P.Ganesan5 is also to the same effect. It is relevant to note that the Division Bench of the Calcutta High Court in Sri Balai Kumar Sanfui4 ordered stay of the departmental enquiry only for a period of one year and held if the criminal trial is not completed within one year, the parties would have liberty to move the Court for appropriate orders.
Therefore, if the case on hand is considered with reference to the facts of the criminal case initiated against the petitioner vis-à-vis the facts of the departmental enquiry initiated against the petitioner, it absolutely leaves no room to entertain any doubt that both the criminal prosecution and also the departmental enquiry initiated against the petitioner are based on the same set of facts. If at all it is said that there is any allegation in disciplinary proceedings which has no nexus to the criminal prosecution initiated against the petitioner is that it only relates to conducting a search by the petitioner without informing the concerned superior officer of the Law and Order regarding the information received by him relating to the said offence of exchanging the demonetized notes with new currency notes. However, there are other allegations also linked with the said act of misconduct and those other allegations in the departmental enquiry are relating to the offence with which the petitioner stood charged 5 Judgment of the Madras High Court in Writ Appeal No.11 of 2006, dated 01.02.2006 14 CMR, J.
W.P.No.8782 of 2019in the criminal case i.e. collusion with A-1 to A-3 and letting them off and thereby screened the offenders and the offence committed by them and not handing over the entire cash of Rs.25.00 Lakhs seized by him in as much as he has handed over only Rs.18.00 Lakhs etc. So, the other allegations ascribed against the petitioner in the departmental enquiry are interlinked or at least inter-related to the main allegations in the criminal case. Undoubtedly, complicated questions of law and fact relating to grave allegations are involved in both the criminal prosecution and the departmental enquiry. Therefore, when both the proceedings in criminal case and the departmental enquiry are based on similar set of facts interlinked with each other, in view of the dictum laid down in various judgments of the Apex Court and the High Courts, as discussed supra, it is desirable to stay the departmental enquiry till the conclusion of trial in the criminal case as it amounts to compelling the petitioner to disclose his defence in the departmental enquiry before conclusion of the criminal trial which would certainly cause prejudice to his defence in the criminal case.
The three Judge Bench of the Supreme Court, relied on by the learned Government Pleader for Services appearing for the respondents, in the case of Depot Manager, APSRTC v. Mohd. Yousuf Miya6 is not applicable to the present facts of the case. That was a case where a criminal prosecution was 6 (1997) 2 SCC 699 15 CMR, J.
W.P.No.8782 of 2019initiated against the employee for offences under Section 304 Part II of IPC against some employees and Section 338 of IPC against the other employees. The main ground on which departmental proceedings are initiated against the employee is that while driving the double-decker vehicle of the Corporation due to lack of anticipation, he had caused an accident in which a cyclist died. Therefore, action was initiated for misconduct and an enquiry is ordered under Regulation 28(ix) of the Employees Conduct Rules, 1963. The prosecution under criminal law was launched by the police for the offence under Section 304 Part II of IPC and in some cases under Section 338 of IPC and they are pending trial. Therefore, the Apex Court held in the said judgment, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in the criminal case and it is always a question of fact to be considered in each case depending on its own facts and circumstances. Further held that as the charge in departmental enquiry is relating to failure to anticipate the accident and prevention thereof, it has nothing to do with the culpability of the offence under Sections 304-A and 338 of IPC. Therefore, the Apex Court did not stay the departmental enquiry. At best this decision can be applied only to the first part of the imputation of charge against the petitioner in departmental enquiry that without informing the superior authorities that he has voluntarily conducted a search 16 CMR, J.
W.P.No.8782 of 2019unauthorisedly along with his staff. However, since this is not the sole charge against him and as there are other charges also against him in the departmental enquiry, which are relating to the facts of the offence committed for which he is charged in the criminal prosecution as already discussed in detail supra, this judgment cannot be applied to the facts of the present case.
Even the other judgment relied on by the learned Government Pleader for Services appearing for the respondents in the case of State of West Bengal v. Sankar Ghosh7 is distinguishable on facts of the present case.
However, this Court has taken note of the observations made by the Apex Court in State of West Bengal v. Sankar Ghosh7 that the standard of proof required in a criminal case and the standard of proof required to establish a charge in the departmental enquiry are different and that the mere fact that the employee was acquitted or discharged in a criminal case by itself cannot be a ground to hold that the employee is not guilty of the charges in the departmental enquiry. Equally the law is also well settled that the acquittal in criminal case is also not sufficient to hold that it would have any effect on the departmental enquiry, particularly, in police department which requires high degree of probity and sincerity.
However, in view of the ratio laid down in the other judgments as discussed supra, this Court is satisfied that both 7 (2014) 3 SCC 610 17 CMR, J.
W.P.No.8782 of 2019the criminal prosecution and the departmental enquiry are based on the same set of facts and interlinked with each other and the continuation of proceedings in the departmental enquiry would have the effect of revealing the defence of the accused causing prejudice in the criminal trial. So, this Court is constrained to order to stay the proceedings of the departmental enquiry at present.
However, the practical difficulty in stalling the departmental enquiry which the employer may face is also to be taken into consideration. In several cases this Court has noticed that as the Government has issued a G.O. that in all minor cases relating to departmental enquiry, the same has to be completed within three months and in grave cases within six months, taking advantage of the said direction of the Government, several employees are approaching this Court whenever there is a delay in departmental proceedings and seeking direction to the higher authorities to consider the case of the employee for promotion during the pendency of the departmental proceedings also on the ground of delay. In view of the said experience, it would be appropriate to hold that since the employee i.e. the petitioner herein is seeking the order of staying the departmental enquiry till conclusion of the criminal trial, he cannot in future take advantage of the delay in the departmental enquiry which are now being stayed on his request and make any complaint or express any grievance on the ground of delay in completing the departmental enquiry. 18
CMR, J.
W.P.No.8782 of 2019In this context, it is appropriate to note that the Division Bench of the Calcutta High Court in the case of Sri Balai Kumar Sanfui4, ordered that departmental enquiry is to be stayed only for one year with a hope that the criminal prosecution would be completed by then. Therefore, as the crime in this case was registered in the year 2016 and the charge-sheet was also filed in the year 2017, this Court is also hopeful that criminal trial of the accused will be completed within a year.
In view of the above discussion, the Writ Petition is disposed of and the departmental enquiry initiated against the petitioner is ordered to be stayed for a period of one year from the date of this order. If the criminal trial is not concluded within one year, the petitioner is at liberty to approach this Court for extension of time. No costs.
The miscellaneous petitions pending, if any, shall stand closed.
________________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date:01.10.2019.
cs