Andhra Pradesh High Court - Amravati
Ch. Vinay vs High Court Of Andhra Pradesh, on 31 December, 2020
Author: C. Praveen Kumar
Bench: C.Praveen Kumar, B Krishna Mohan
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IN THE HIGH COURT OF ANDHRA PRADESH
***
Writ Petition No. 21953 of 2020
Between:
Ch. Vinay, S/o. Late Venkateswara Rao
.... PETITIONER
And
1. High Court of Andhra Pradesh, Amaravati, Guntur
District.
2. The Principal District and Sessions Judge,
Visakhapatnam.
3. Sri. G. Vallabha Naidu, Enquiry Officer-cum-Special
Judge for Trial and Disposal of Commercial Disputes,
Visakhapatnam.
.... RESPONDENTS
Date of Judgment pronounced on : 31.12.2020
HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN
1. Whether Reporters of Local newspapers : Yes/No
may be allowed to see the judgments?
2. Whether the copies of judgment may be marked : Yes/No
to Law Reporters/Journals:
3. Whether The Lordship wishes to see the fair copy : Yes/No
of the Judgment?
2
* HON'BLE SRI JUSTICE C. PRAVEEN KUMAR
AND
THE HON'BLE SRI JUSTICE B. KRISHNA MOHAN
+ Writ Petition No. 21953 of 2020
% 31.12.2020
# Ch. Vinay, S/o. Late Venkateswara Rao
.... PETITIONER
And
$ 1. High Court of Andhra Pradesh, Amaravati, Guntur
District.
2. The Principal District and Sessions Judge,
Visakhapatnam.
3. Sri. G. Vallabha Naidu, Enquiry Officer-cum-Special
Judge for Trial and Disposal of Commercial Disputes,
Visakhapatnam.
.... RESPONDENTS
! Counsel for the Petitioner: Sri. Aka Venkataramana
Counsel for the Respondents: Sri. K.A. Narasimham
<Gist :
>Head Note:
? Cases referred:
1) 1960 (3) SCR 227 =AIR 1960 SC 806
2) AIR 1965 SC 155 = 1964 (7) SCR 555
3) AIR 1997 S.C. 13
4) (2014) 3 SCC 610
5) Civil Appeal No. 7279 of 2019 dt. 16/9/2019
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HON'BLE SRI JUSTICE C.PRAVEEN KUMAR
AND
HON'BLE SRI JUSTICE B. KRISHNA MOHAN
Writ Petition No. 21953 OF 2020
ORDER:(per the Hon'ble Sri. Justice C. Praveen Kumar)
1) The present Writ Petition came to be filed seeking issuance of writ of mandamus to declare the action of the 2nd Respondent i.e., The Principal District and Sessions Judge, Visakhapatnam, in issuing a charge-sheet, dated 03.07.2020, and the consequential Order in D.E. No. 07- A/2020, dated 03.10.2020, appointing an Enquiry Officer to conduct Departmental Enquiry against the Petitioner on Charges, which are identical to the criminal case registered under the provisions of the Prevention of Corruption Act, as illegal and arbitrary.
2) The factual matrix of the case is as under:
a) The Petitioner herein was appointed as Ameen/ Field Assistant on compassionate grounds by an Order, dated 03.03.2014, and he was posted at Chodavaram. Thereafter, he was transferred to Bheemili, where, he jointed on 14.07.2014.
Subsequently, he was again transferred and posted at Visakhapatnam, vide Order, dated 01.06.2018. 4 He was entrusted with the work of preparation of warrants, notices and process relating to IVth and VIth Additional Senior Civil Judges Court, Visakhapatnam.
b) While things stood thus, one A. Satyanarayana, instituted a Suit for recovery of Rs.2,75,000/- in O.S. No. 396 of 2013 before the court of VI Additional Senior Civil Judge, Visakhapatnam. After the suit was decreed, the Plaintiff filed E.A. No. 160 of 2018 in E.P. No. 21 of 2015, for attachment of movables belonging to Judgment Debtor. An Order came to be passed in the E.A. attaching the movables available in the shop of the Judgment Debtor.
c) It is averred that, on 15.10.2019, the Petitioner along with R. Vijay Mohan Kumar, Field Assistant, went to the shop of the Judgment Debtor with Movable Attachment Warrant and found a boy sitting in the shop. On questioning about the Judgment Debtor, they were informed that the Judgment Debtor is his mother and accordingly called her over phone. Ten minutes later, she arrived. When the Petitioner explained about the 5 attachment order, she resisted the same and requested some time to settle the matter with the Decree Holder. Accordingly, the Petitioner claims to have left the place informing that he will come back after couple of days.
d) Later, the Judgment Debtor is said to have lodged a report with A.C.B., wherein, she alleged that the Petitioner demanded a sum of Rs.5,000/- as bribe for granting 10 days time in serving the notice with delay. Pursuant thereto, a trap was arranged and thereafter, the Petitioner was caught while accepting the bribe and later produced before the court of III Additional District and Sessions Judge -cum- Special Judge for A.C.B., cases, Visakhapatnam, on 20.10.2019, and remanded to judicial custody.
e) Basing on remand, the 2nd Respondent issued Order's in P.R. No. 458-A/2019, dated 22.10.2019, placing the Petitioner under suspension and thereafter, proceedings came to be issued appointing II Additional Special Judge for CBI Cases, Visakhapatnam, as Enquiry Officer to conduct the preliminary enquiry and submit his report, which was submitted on 07.02.2020, 6 opining that prima facie case is made out against the Petitioner. Basing on the preliminary enquiry report, Articles of Charges were framed on 03.07.2020, mentioning the list of witnesses and the documents on which regular enquiry would be conducted. The Petitioner was asked to submit his explanation, which he has done on 20.08.2020, denying the Charges.
f) It is now pleaded that, as the allegations in both the proceedings are one and the same and if the Petitioner discloses his defense before the Enquiry Officer, the same would prejudice him in the criminal case. But, without considering the said explanation, the authorities proceeded further.
g) These actions are sought to be challenged, mainly on the ground that as the allegations in the departmental proceedings and the criminal case being one and the same, the departmental proceedings shall be stayed till the completion of criminal case.
3) A Counter came to be filed on behalf of 2nd Respondent disputing the averments made in the 7 affidavit filed in support of the Writ Petition, except to the extent admitted therein.
(i) Pursuant to a report given by Smt. T. Venkata Ramani, a case in Crime No. 14/RCT-ACB-VSP/ 2019, dated 19.10.2019, was registered against the Petitioner and then a trap was laid, wherein, he accepted an amount of Rs.5,000/- from the complainant, pursuant to the demand made, for giving 10 days time for execution of Rule 43 Movable Attachment Warrant issued by VI Additional Senior Civil Judge, Visakhapatnam. The Petitioner was remanded to judicial custody till 01.11.2019, pending further investigation.
(ii) Having regard to the nature of allegations made, necessary steps were taken by Principal District Judge, Visakhapatnam, in issuing Proceedings, dated 22.10.2019, and accordingly, the Petitioner was suspended with effect from 19.10.2019, under Rule (2) (a) of APCS (CCA) Rules, 1991, and he was directed to be under suspension until further orders or termination of all proceedings relating to criminal charges made against the Petitioner.
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(iii) One G. Satya Prabhakar, was appointed as Enquiry Officer vide Proceedings, dated 18.12.2019, to conduct preliminary enquiry on corruption allegations leveled against the Petitioner. After submission of the report and on being satisfied that a prima facie case has been made out, regular departmental proceedings came to be initiated.
(iv) In-fact, the counter shows that, having regard to the nature of allegations made against one R.Vijay Mohan Kumar, Field Assistant, an official Memorandum was also issued to him on 22.02.2020, enclosing photostat copy of the statement of the complaint and other material, calling upon for his explanation on the allegations made therein. An explanation was submitted by R. Vijay Mohan Kumar on 06.06.2000, denying the allegations made therein. According to him, except accompanying the Petitioner to the shop of the Complainant for executing the warrant, he has not displayed any misconduct. As his explanation was not satisfactory, the same was also not accepted. 9
(v) It is further averred that, the proceedings of the 2nd Respondent, which are issued under the provisions of APCS (CCA) Rules, 1991, in respect of misconduct/misbehavior of the charged employees i.e., Writ Petitioner and R. Vijay Mohan Kumar, Field Assistant, being different from the criminal proceedings initiated against the Petitioner with regard to demand and acceptance of illegal gratification, both are independent and different, and as such, continuation of criminal proceedings does not in any way warrants staying of departmental proceedings. It is further pleaded that, standard of proof required to prove in both the proceedings are different, and as the proceedings are still at the initial stage, the question of staying the proceedings does not arise. Reiterating the averments in the counter filed, the Counsel would submit that the Writ Petition warrants no merit and the same has to be dismissed.
4) Though, the counsel for the Petitioner relied upon the judgment of the learned Single Judge, but, no authority supporting the stand of the Respondent is 10 placed on record, except the documentary material showing the representations made, the preliminary enquiry conducted, Articles of Charge framed etc.
5) The point that arises for consideration is, whether the request of the Petitioner seeking stay of departmental proceeding till the completion of criminal case can be accepted?
6) A copy of the remand report, which is placed on record by the Counsel for the Petitioner would show that, on 17.10.2019, when the Complainant in the criminal case was in her house and her elder son Sri Dheeraj in the shop, the two Court Ameens i.e., the Petitioner and R.Vijay Mohan Kumar along with Sri Adapa Satyanarayana came to the shop and started throwing out the items from the shop. Immediately, she telephoned to the Petitioner and informed him that her lawyer asked to note the objection of the notice of recovery of items from the shop, as she did not take any loan from A.Satyanarayana. The Petitioner refused to write the objections and demanded bribe of Rs.5,000/- to cause delay in serving the court notice for 10 days. As there was no alternative, she agreed to pay the demanded bribe of Rs.5,000/- and came down from the 1st floor of the 11 house. The Petitioner asked her to take the photographs of the list of items to be recovered from the shop. Later, the Ameens kept the items in the shop. The Petitioner initially asked the Complainant to come to the court, but later asked her to come to Dabha Gardens and then to near CMR Shopping Mall.
7) At about 4.00 p.m., the complainant went to the CMR Shopping Mall and met the Petitioner, wherein, he demanded her to pay an amount of Rs.5,000/- as bribe for causing delay in serving the notice for 10 days. Though, she pleaded her inability, he reiterated his demand and left the place. As there was no alternate, she initially agreed, but, later lodged a report before the D.S.P., A.C.B., Visakhapatnam, for taking necessary action against the Petitioner.
8) It appears from the record that, she recorded the conversation that took place between her and the Petitioner, in X-Treme SM 4GB memory card through her mobile phone and submitted the same to D.S.P., along with her written report. Having regard to the above, a case was registered and trap was successfully laid on 19.10.2019 in the shop of the Complainant. This, in 12 substance is the case against the Petitioner, and the investigation is still pending.
9) As stated earlier, departmental proceedings came to be initiated against the Petitioner on an allegations that the acts of the Petitioner in demanding and accepting the amount for doing an official favor, by postponing service of notice, amounts to serious misconduct and misbehavior while on duty, which acts amounts to contravention of Rule 3 of APCS (Conduct) Rules, 1964.
10) Before going further, it would be useful to refer to the three 'Articles of Charges' framed against the Petitioner, which are as under:
Articles of Charge No.1, reads as under:
'That the said Sri Ch. Vinay, while functioning as Field Assistant in Central Nazarath, District Court, Visakhapatnam during period from 04.06.2018 to till the date of his suspension, was entrusted with the work of preparation of warrants, notices etc., process relating to the court of IV and VI Additional Senior Civil Judge, Visakhapatnam, as per office order dated 01.06.2019 passed in Central Nazarath and accordingly, he prepared the Movable Attachment Warrant in E.A. No. 160/18 in E.P. 21/15 in O.S. No. 396/13 as per docket order dated 23.09.2019 passed by the VI Additional Senior Civil Judge, Visakhapatnam and assigned PSA No. 13166 dated 26.09.2019 to it in Central Nazarath and thus he fully aware of case particulars such as 13 name and address of both parties in the matter (D.Hr and L.Dr): schedule property and warrant amount etc, information and that after preparing of warrant and obtaining signature of the Presiding Officer he intentionally kept the ready warrant pending with him without handing over the same either to the Central Nazir or to the entrustment Amin (FA) for its entrustment to the Field Assistant, as per roster book (turn book) being maintained in Central Nazarath, District Court, Visakhapatnam and further the said Field Assistant without entrustment of the said Movable Attachment Warrant (PSA No. 13166 dated 26.09.2019) in his name, and without any intimation to the Central Nazir unofficially proceeded to the shop of complainant/ J.Dr. situated at Poorna Market area, Visakhapatnam on 15.10.2019 and 17.10.2019 (till then he kept pending the prepared movable attachment warrant with him since the date of its ready) along with Sri R. Vijay Mohan Kumar, Field Assistant and informed the J.Dr/ Complainant falsely that they came at her shop and threatened her that if she failed to ay the E.P warrant amount to the D.Hr., they would take away the articles etc., from her shop, as per court order, and further deliberately demanded bribe/ illegal gratification of Rs.5000/- from her to refrain from executing the warrant for 10 days and later also he demanded her to arrange the said bribe amount, over phone and thus he exhibited serious misconduct/ misbehavior while on duty which act/acts if proved or established would amount to serious misconduct and contravention of Rule 3 of APCS (Conduct) Rules, 1964 and liable for punishment as per APCS (CCA) Rules, 1991.' Articles of Charge No.2, reads as under:
'That the said Sri. Ch. Vinay, while functioning as Field Assistant, in the aforesaid court during the aforesaid 14 period, the ACB officials registered a case in Cr. No. 14/RCT/ACB/VSP/2019/ dated 19.10.2019 of Visakhapatnam Range, Visakhapatnam against him, basing on the complaint petition filed by the complainant/ J.Dr., viz., Smt. T.Venkataramani, R/o. Poorna Market Area, Visakhapatnam alleging threatening and demanding bribe / illegal gratification of Rs.5,000/- by the said Field Assistant from her to refrain from executing the Movable Attachment Warrant in E.A. No. 160/18 in E.P. No. 21/15 in O.S. No. 396/13 on the file of VI Additional Senior Civil Judge, Visakhapatnam for a period of 10 days, and thus he exhibited misconduct/misbehavior, which act/acts if proved or established would amount to serious misconduct and contravention of Rule 3 of APCS (Conduct) Rules, 1964 and liable for punishment as per APCS (CCA) Rules, 1991.' Articles of Charge No.3, reads as under:
'That the said Sri. Ch. Vinay, while functioning as Field Assistant, in the aforesaid court during the aforesaid period, basing on the complaint petition given by the complainant/ J.Dr., Smt. T.Venkata Ramani, R/o. Poorna Market Area, Visakhapatnam to the ACB officials of Visakhapatnam alleging threatening and demanding bribe / illegal gratification of Rs.5,000/- by the said Field Assistant from her to refrain from executing the Movable Attachment Warrant in E.A. No. 160/18 in E.P. No. 21/15 in O.S. No. 396/13 on the file of VI Additional Senior Civil Judge, Visakhapatnam for a period of 10 days. The ACB officials laid a trap and caught the said Field Assistant red handedly on 19.10.2019 while he was demanding and accepting bribe amount of Rs.5,000/- from the complainant/J.Dr and later arrested and remanded him to judicial custody in Cr. No. 14/RCT- ACB-VSP-2019, dated 19.10.2019 and thus the said 15 Field Assistant exhibited serious misconduct which act/acts if proved or established would amount to grave misconduct and contravention of Rule 3 of APCS (Conduct) Rules, 1964 and liable for punishment as per APCS (CCA) Rules, 1991.'
11) Keeping in view the contents of the Charges vis-à-
vis, the allegations made in the remand report, it is to be seen whether continuation of departmental proceedings, pending trial in criminal case would be prejudicial to the Petitioner or, whether the same have to be stayed till the completion of criminal trial.
12) The counsel for the Petitioner placed reliance on the judgment of this court in W.P. No. 8782 of 2019 in support of his plea. It was a case where the Petitioner who was working as Sergeant Traffic-I Police Station, Kakinada, involved in a criminal case vide Crime No.244 of 2016, registered for the offences punishable under Sections 120-B, 201, 203, 213, 217, 218, 221 IPC and Section 69(A) of Income Tax Act read with Section 34 IPC.
The allegations were that, the Petitioner along with his staff involved in corrupt practices by conducting illegal raid, without the knowledge of the concerned authorities of law and order or any other superior officer, 16 and seized a bag containing Rs.25.00 Lakhs from A-1 to A-4 therein. The allegations in the said case further show that, during the course of illegal transfer of money, during the period of demonetisation of currency notes, the petitioner in collusion with A-1 to A-3, 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. A Charge memo was issued evidencing initiation of disciplinary proceedings against the Petitioners therein on the allegations referred to above. Challenging the same, a Writ Petition came to be filed.
13) The question in the said Writ Petition was, whether departmental proceedings can be stayed till the criminal case is concluded. Referring to the judgments of the Apex Court in Delhi Cloth & General Mills Ltd. v. Kushal Bhan1; Tata Oil Mills Co. Ltd. v. Workmen2 which also followed Delhi Cloth & General Mills Ltd. [Supra 1]; State of Rajasthan v. B.M. Meena3; and the unreported judgments of the Madras High Court and Calcutta High Court, the Court held that, as the allegations in both the cases are based on same set of facts and are interlinked 1 1960 (3) SCR 227 =AIR 1960 SC 806 2 AIR 1965 SC 155 = 1964 (7) SCR 555 3 AIR 1997 S.C. 13 17 with each other and as the continuation of departmental proceedings would have the effect of revealing the defense, thereby causing prejudice to the accused, stayed the proceedings in departmental enquiry till completion of criminal trial.
14) Though the learned Single Judge referred to the judgment of the Apex Court in State of West Bengal v. Sankar Ghosh4, wherein the Court categorically held 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,' but, in view of the other judgments referred to therein, the learned Single Judge of this court 'stayed' the departmental enquiry proceedings against the Petitioner therein, for a period of one year, with the hope that the criminal trial would be completed by then.
15) In Karnataka Power Trans. Corp. Ltd. Vs. Sri C. Nagaraju & Anr5, the Apex Court dealt with a situation identical to the case on hand. It was also a case where 4 (2014) 3 SCC 610 5 Civil Appeal No. 7279 of 2019 dt. 16/9/2019 18 the Respondent therein C.Nagaraju demanded a sum of Rs.1,250/- as illegal gratification and accepted Rs.750/- as advance amount for doing a favour of giving electrical power supply. In the said case also trap was successfully arranged and the Petitioner was caught while accepting the bribe amount. A Charge came to be framed against the Respondent, which is as under:
'Charge:
That you DBE Sri. C. Nagaraju, while working as Junior Engineer (Elecl.,) at KEB, VV-1 (O&M) South Zone, Vidyaranyapuram Circle, Mysore during the year 1998, one Sri. K. Chandrasekhar, Class II Electrical Contractor, Resident of Vidyaranyapuram, Mysore, (hereinafter called as 'Complainant') had approached you for obtaining electrical power supply to the house and shop of his customer Smt. Savithramma, on 14-5- 1998, and you demanded a sum of Rs.1,250/- as illegal gratification, and on 16-5-1998 you once again demanded and accepted illegal gratification of Rs.750/- as advance amount, from the complainant for doing the said work of giving electrical power supply, and thereby you being a public servant failed to maintain absolute integrity and devotion to duty and did an act which was unbecoming of a Government servant and thereby you have committed an act of misconduct as enumerated under Rule 3(1)(i) & (iii) of K.E.B. Employees Service (Conduct) Regulation Rules, 1988."
15-A) Explanation to the said Charge was submitted and after enquiry, it was held that the Charge against the 1st Respondent was proved. The Lokayukta examined the 19 inquiry report and approved the findings of the Inquiry Officer. Having regard to the serious misconduct committed by Respondent No.1, the Lokayukta imposed penalty of dismissal from service under Clause VIII of Regulation No.9 of Karnataka Electricity Board Employees (Classification, Discipline, Control and Appeal) Regulations, 1987.
15-B) The final notice was issued by the Karnataka Power Transmission seeking explanation from Respondent No.1 as to why the report of the Inquiry Officer should not be accepted. After considering the explanation submitted, the said order was affirmed by the Appellant Authority. Aggrieved by the same, Respondent No.1 therein C.Nagaraju filed a writ petition, which was allowed and the said order was confirmed by the Division Bench. Challenging the same, Karnataka Power Transmission Corporation Limited filed Special Leave Petition [SLP (C) No. 25909 of 2013]. It is to be noted here that, in the said case, the Respondent was also tried for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, and he was acquitted by the Criminal Court as the prosecution witnesses turned 20 hostile and did not support the case of the prosecution.
Keeping in view the facts in the background, the Apex Court after referring to the judgments in Captain M. Paul Anthony v. Bharat Gold Mines Ltd; G.M. Tank v.
State of Gujarat; Krishnakali Tea Estate v. Akhil Bhartiya Chah Mazdoor Sangh, held as under:
'It is settled law that the acquittal by a Criminal Court does not preclude a Departmental Inquiry against the delinquent officer. The Disciplinary Authority is not bound by the judgment of the Criminal Court if the evidence that is produced in the Departmental Inquiry is different from that produced during the criminal trial. The object of a Departmental Inquiry is to find out whether the delinquent is guilty of misconduct under the conduct rules for the purpose of determining whether he should be continued in service. The standard of proof in a Departmental Inquiry is not strictly based on the rules of evidence. The order of dismissal which is based on the evidence before the Inquiry Officer in the disciplinary proceedings, which is different from the evidence available to the Criminal Court, is justified and needed no interference by the High Court.'
16) It is noted here that, in the instant case, both the proceedings are still at the initial stage. It appears that, even charge-sheet is not filed in the criminal case. A reading of the charges framed in the departmental enquiry would show that, they were directed against the conduct of the petitioner in intentionally keeping the 21 attachment warrant with him, after obtaining the signature of the Presiding Officer and failing to hand over the same either to the Central Nazir or to the entrustment Amin, for its entrustment to the Field Assistant, as per the roster book and he on his own proceeding to the shop of the complainant by keeping the warrant with him and making a false representation that he came to execute the warrant leading to (demand and acceptance of illegal gratification).
17) From the above, it is clear that the contents of the articles of charge and the facts in the criminal case are totally different. The proceedings in the criminal case were mainly with regard to acceptance of money as bribe for causing delay in execution of attachment warrant, whereas the facts in the departmental proceedings relate to his misconduct, under the Conduct Rules i.e., keeping the warrant with him even after it was signed by Presiding Officer; not handing over the same to Central Nazir or to the entrustment Amin [FA] for its entrustment to the Field Assistant, as per roster book and he on his own threatening the complainant of executing the warrant though not authorized. These acts do not form 22 part of criminal proceedings nor could they form part of the charge-sheet or charges in criminal case. As held by the Apex Court in Karnataka Power Trans. Corp. Ltd.
case [supra], the object of a Departmental Inquiry is to find out whether the delinquent is guilty of misconduct under the conduct rules for the purpose of determining whether he should be continued in service. The court further held that, the standard of proof in a Departmental Inquiry is not based on the rules of evidence and the nature of the evidence before the Inquiry Officer to prove the misconduct would also be different.
18) Such being the position and as the facts in the instant case are not complicated in nature or involves complicated question of law, and that the substance of charge in both the proceeding are different, we feel that, question of staying the departmental proceedings till completion of trial would not arise.
19) Accordingly, the Writ Petition is dismissed. No order as to costs.
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20) Consequently, miscellaneous petitions pending, if any, shall stand closed.
_______________________________ JUSTICE C.PRAVEEN KUMAR _______________________________ JUSTICE B. KRISHNA MOHAN Date: 31.12.2020 Note: LR Copy to be marked B/o.
SM.
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HON'BLE SRI JUSTICE C.PRAVEEN KUMAR AND HON'BLE SRI JUSTICE B. KRISHNA MOHAN Writ Petition No. 21953 of 2020 (per the Hon'ble Sri. Justice C. Praveen Kumar) Date: 31.12.2020 SM.