J.Srinivasa Rao vs. The State Of Andhra Pradesh

THE HONOURABLE SRI JUSTICE M.SATYANARAYANA MURTHY

WRIT PETITION No.9055 of 2020

ORDER:

This writ petition, under Article 226 of the Constitution of India, is filed by the petitioner seeking the following relief:

"….to issue an order, writ or direction, more particularly, one in the nature of Writ of Mandamus declaring the proceedings in Dis.No.154/T3/2019 dated 01.04.2020 rejecting the revision and also issuing the order dated 13.05.2020 of the 2nd respondent, the proceedings in RC.No.A3/05-01/Appeal/2018-19, dated 28.01.2019 of the 3rd respondent in Appeal in enhancing the punishment as Dismissal from service with immediate effect, and the proceedings in C.No.02/PR/2016-18(ROO.No.110/2018) dated 14.05.2018 of the 4th respondent in so far as it relates to awarding punishment of RTSP by two stages for two years with cumulative effect on his future increments and pension and the period of suspension is treated as NOT ON DUTY are illegal, arbitrary, unjust, contrary to the procedure under Rule 20 and Rule 37 of CCA Rules, contrary to Rule 3 of the APCS (Conduct) Rules, 1964 and in violation of principles of natural justice, and in violation of Art.14 and 21 of Constitution of India and set aside the same and consequently direct the Respondents to reinstate the Petitioner into service with all consequential service benefits and pass such order or other orders.."

2. The petitioner was appointed as Police Constable in 9th battalion (Bn) Venkatagiri on 27.10.1992. He was promoted as Head Constable on 01.09.2000 and posted in 12th Bn Nalgonda. He was further promoted as Assistant Reserve Sub-Inspector in the same Bn Nalgonda. Thereafter, he was transferred to 17th Bn Karimnagar. He was again promoted as Reverse Sub-Inspector on 26.04.2014 and was posted in 6th Bn Mangalagiri. While working as such, the disciplinary authority respondent No.4 issued articles of charge memo, dated 30.06.2016/18.07.2016, against the petitioner, who in turn, submitted explanation to the same. But, without considering the said explanation, respondent No.4 appointed an enquiry officer on 01.06.2017. The enquiry officer submitted report (minutes report) on 27.10.2017 without there

being any iota of evidence in support of his findings. Thereafter, respondent No.4 issued a show cause notice, dated 09.11.2017, and the same was forwarded to the petitioner on 21.11.2017. The petitioner submitted explanation to the show cause notice on 01.02.2018 denying the charges and requested for fair opportunity in accordance with the procedure laid down under the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short 'the CCA Rules'). The petitioner relied upon the judgment, dated 06.10.2017, in S.C.No.96 of 2016 on the file of the Special Judge constituted under Protection of Children from Sexual Offences Act-cum-I Additional Sessions Judge, Guntur, whereby he was found not guilty and was acquitted on merits of the case. Thereafter, respondent No.4 issued proceedings, dated 14.05.2018, awarding punishment of RTSP by two stages for two years with cumulative effect on his future increments and pension. The period of suspension was treated as 'not on duty' without assigning any cogent reasons.

3. Aggrieved by the order passed by the disciplinary authority, the petitioner preferred an appeal on 07.10.2018 to respondent No.3. Respondent No.3 issued a show cause notice, dated 27.11.2018, for enhancement of punishment. The petitioner submitted his explanation to the show cause notice denying the charges and the manner in which the enquiry was conducted. Respondent No.3 passed order, dated 28.01.2019, in the appeal, enhancing the punishment to that of 'dismissal from service' with immediate effect, without considering explanation and without appreciating the evidence available on record.

4. Aggrieved by the order passed by the appellate authority, the petitioner preferred a revision before respondent No.2. The petitioner submitted written statement of defense. But, respondent No.2 issued proceedings, dated 01.04.2020, rejecting the revision and passed order,

dated 13.05.2020, without following the procedure under Rule 20 of the CCA Rules and without considering the admissible evidence along with the judgment, dated 06.10.2017, in S.C.No.96 of 2016.

5. The main grievance of the petitioner is that none of the authorities applied mind and passed the orders mechanically, without assigning any reasons. In that process, the disciplinary authority - respondent No.4 imposed punishment of RTSP by two stages for two years with cumulative effect on future increments and pension, the appellate authority respondent No.3 imposed major punishment of 'dismissal from service', which was affirmed in the revision by the revisional authority – respondent No.2. Therefore, the petitioner requested the Court to set aside the impugned orders.

6. During hearing, learned counsel for the petitioner contended that as the impugned orders are passed without application of mind and without assigning any reasons, more particularly, while imposing/confirming the major punishment of 'dismissal from service' by the appellate/revisional authority, the same are illegal and arbitrary. He placed reliance on the judgment of the Apex Court in Allahabad Bank vs. Krishna Narayan Tewari¹ and requested to remand the matter to the appellate authority to pass appropriate orders, afresh, by applying mind.

7. Learned Government Pleader for Services appearing for the respondents contended that a show cause notice was issued by the appellate authority for the proposed enhancement of punishment as required under Rule 37 of the CCA Rules and the petitioner submitted explanation to the said show cause notice, that therefore, the appellate authority followed the procedure and in the absence of any violation, the order passed in the appeal cannot be interfered with.

He also contended that against the order passed in the revision, a remedy of an appeal to the Government is available in terms of Rule 41 of the CCA Rules and that in view of G.O.Ms.2, General Administration (SER.C) Department, dated 04.01.1999, the punishment to be imposed against the person who mis-conducted himself for sexual harassment is 'dismissal from service' and requested to dismiss the writ petition.

8. The first and foremost contention of the petitioner is that the disciplinary authority, while imposing punishment, did not assign any reasons in support of the findings recorded by the enquiry officer; that the appellate authority also, while enhancing the punishment, did not consider the evidence in proper perspective, but passed a cryptic order without assigning any reasons, and so also the revisional authority assigned any reasons while confirming the order passed by the appellate authority. On this ground alone, the petitioner sought to set aside the impugned orders and required the matter to be remanded to the appellate authority for reconsideration of the entire material and for passing of appropriate order by applying mind.

9. While passing the order in the appeal, the appellate authority observed as follows:

"…..

I have gone through the appeal petition and connected PR records. On perusal of the records, it has come to my notice that the disciplinary authority i.e., DIG-IV, APSP Bns., has awarded a very light punishment i.e., "RTSP by two stages for a period of two years with effect on future increments and pension" against the charged officer though the allegations are serious in nature. Therefore, I disagree with the quantum of punishment imposed by the DIG-IV, APSP Bns., as to be not commensurate with the kind of delinquency which has been proved against the charged officer. On that, a show cause notice has been issued against the Charged officer with directions to submit the explanation to show cause notice within (10) days from the receipt of the show cause notice.

Accordingly, the charged officer has submitted his explanation which is not convincing. He stated that the Hon'ble Court has

acquitted the case registered in Cr.No.75/2016, U/s 506 IPC, Sections 10, 12 & 17, dt: 02.05.2016 of the Protection of Children from Sexual Offences Act – 2012 of Mangalagiri Town PS, stating that "Prosecution miserably failed to establish the guilt of accused"

As per standing order 151 (2) of APPM Part – I "when a Criminal Court acquits an Officer on a purely technical ground or due to hostility of witnesses or on some other fact other than misconduct, it does not prohibit the department from proceeding against him in Departmental Proceedings." Subsequently, in the departmental enquiry, the inquiring authority has submitted his findings as Proved against the charged officer.

Moreover, the charges are very grave and reflect on the moral turpitude of the officer for maintaining illegal relation with fellow constable wife and also sexually harassment with his minor daughter. Thus, the Charged Officer is liable for the punishment of 'Dismissal from Service' as per G.O.Ms.No.2, dtd.04.01.1999 & 458, dtd.22.09.2009 of GAD (Ser-C) Dept., without any deviation.

Therefore, the punishment of "RTSP by two stages for two years with effect on future increments and pension" is enhanced as "Dismissal from Service" with immediate effect."

10. The above order is bereft of any reasons though it enhanced the punishment imposed by the disciplinary authority, who confirmed the findings recorded by the enquiry officer. In an appeal preferred before the appellate authority against the punishment imposed by the disciplinary authority, it is for the appellate authority to reconsider the entire evidence and come to an independent conclusion, notwithstanding the findings recorded by the enquiry authority. Instead of following such procedure, the appellate authority, without assigning any reasons and without considering the grounds urged in the appeal, enhanced the punishment imposed by the disciplinary authority, by imposing major punishment of 'dismissal from service'. This cryptic order cannot be sustained in view of the law declared by the Apex Court in its decision in Allahabad Bank (supra), wherein it was held as under:

"……6. On behalf of the respondent it was on the other hand contended that the enquiry conducted against the respondent and the conclusion arrived at by the Enquiry Officer, Disciplinary

Authority and the Appellate Authority suffered from fatal defects. Firstly, because the enquiry conducted by the Enquiry Officer was unfair and had resulted in gross miscarriage of justice on account of the failure of the Enquiry Officer to provide a reasonable opportunity to the respondent to lead evidence in his defense. In the second place the findings recorded by the Enquiry Officer and so also the Disciplinary Authority were unsupported by any evidence whatsoever and were perverse to say the least. In the third place, the orders were unsustainable also for the reason that the same did not disclose due and proper application of mind by the Disciplinary Authority and the Appellate Authority. The order passed by the Appellate Authority was, in particular, bad in law as the same did not examine the material on record independently and had simply relied upon the findings of the Disciplinary Authority without adverting to the points which the respondent had raised in support of his challenge. It was lastly submitted that the respondent has since superannuated and was a physical wreck having suffered a heart attack and a debilitating stroke which had confined him to bed. Any remand of the proceedings to the Appellate Authority to pass a fresh order or the Disciplinary Authority for re-examination and fresh determination of the respondent's guilt would not only be harsh but would tantamount to denial of justice to him. The High Court was in that view justified in taking a pragmatic view of the matter and in directing continuity of service to the respondent and release of all service and retiral benefits to him upto the date of his superannuation.

7. We have given our anxious consideration to the submissions at the bar. 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 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 defense 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."

11. In view of the law declared by the Apex Court, when the appellate authority did not consider and record any reasons to accept the findings recorded by the enquiry officer, the only course open to this Court is to remand the matter to the appellate authority with a direction to reconsider the appeal and appreciate the contentions raised in the appeal grounds with reference to the material and evidence available on record and to record specific reasons for accepting the findings recorded by the enquiry officer. If the principle laid down in the above judgment is applied, the matter has to be remanded to the appellate authority.

12. Similarly, in the revision filed by the petitioner aggrieved by the order of the appellate authority, no specific finding is recorded, except observing that the revision is considered and rejected. This is another cryptic order passed by the revisional authority. Therefore, both the orders cannot be sustained and the matter has to be remanded to the appellate authority with a specific direction to reconsider the appeal with reference to the entire material and evidence available on record and record specific reasons for acceptance of the findings recorded by the enquiry officer.

13. One of the contentions raised by the learned Government Pleader for Services appearing for the respondents is that the appellate authority in compliance of Rule 37 of the CCA Rules issued a show cause notice before enhancing the punishment. However, in view of my earlier findings, the alleged procedural laches committed by the appellate authority needs no further consideration.

14. Another contention raised by the learned Government Pleader is that in view of Rule 41 of the CCA Rules, an appeal lies to the Government against an order passed by the revisional authority, but, a perusal of the Rules shows that it is only a review that can be filed before the Government and the Government may exercise such power of review against any order passed under these Rules only on a reference made by the head of department when new material or evidence, which could not be produced earlier or was not available at the time of passing of the order under review, is made available later. This contention cannot be accepted for the simple reason that only in case when new material or evidence, which could not be produced earlier or was not made available at the time of passing of the order under review, is produced later, the Government can exercise the power of review under Rule 41 of the CCA Rules, which is similar to the power conferred under Section 114 read with Order XLVII Rules 1 and 2 C.P.C., and such a power can be exercised only in limited circumstances. But, here the petitioner did not produce any new material or evidence, which he could not produce earlier or which was not made available at the time of passing of the order under review. Therefore, the question of filing a review under Rule 41 of the CCA Rules does not arise in the present facts and circumstances of the case. Accordingly, I find no substance in the contentions raised by the learned Government Pleader for Services appearing for the respondents and the same are rejected.

15. Insofar as the punishment is concerned, the quantum of punishment can be decided only when a specific finding is recorded by the appellate authority. In view of my conclusions in the earlier paragraphs, this Court need not consider which is sufficient punishment or punishment commensurate with the misconduct alleged, more particularly, in view of G.O.Ms.No.2, dated 04.01.1999. Therefore, I need not record any finding regarding quantum of punishment at this stage.

16. In view of my foregoing discussion, the Writ Petition is allowed, by setting aside the orders passed by the appellate authority and revisional authority, while remanding the matter to the appellate authority for fresh consideration of the material and evidence available on record, with a direction to record specific reasons for any independent conclusion, strictly in accordance with the law laid down by the Apex Court in Allahabad Bank (supra), as expeditiously as possible, and not later than three months from the date of receipt of a copy of this order. There shall be no order as to costs.

As a sequel, all the pending miscellaneous applications shall stand closed.

M.SATYANARAYANA MURTHY, J

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28th January, 2021 GHN