* THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE G. BHAVANI PRASAD +WRIT PETITION NO : 2034 of 2007 %08-04-2010 #G. Ramesh Babu ….Petitioner Vs. $ 1. Andhra Pradesh Administrative Tribunal at Hyderabad rep., by the Registrar, Purana Haveli, Hyderabad and others. …. Respondents !Counsel for the Appellants: Smt. T.V. Sridevi Counsel for the Respondents: G.P. for Services I <Gist : >Head Note: ? Cases referred: 1. AIR 2006 SC 2129 2. 2006-AIR Jharr-2-139 3. (1999) 8 SCC 582 4. (1995)(6) SCC 749 THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETITION NO : 2034 of 2007 Dated: 8.4.2010 Between: G. Ramesh Babu ..PETITIONER And 1. Andhra Pradesh Administrative Tribunal at Hyderabad, rep., by the Registrar, Purana Haveli, Hyderabad and others. ..RESPONDENTS This Court made the following: THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETITION NO :2034 of 2007 ORAL ORDER: (Per Hon’ble Sri. Justice Ghulam Mohammed) This writ petition is filed assailing the order, dated 7.11.2006 passed by the A.P. Administrative Tribunal in O.A.No.8072 of 2003. 2. The writ petitioner herein filed the above O.A. aggrieved by the order of the 1st respondent dated 8.5.2002 dismissing him and the order of the 2nd respondent vide order dated 16.8.2002 rejecting the appeal and the order of the 3rd respondent vide order dated 26.11.2002 rejecting the revision. 3. It is the case of the petitioner-applicant that while he was working as Police Constable, he was placed under suspension by the 1st respondent vide orders dated 5.4.1998 on the allegation of misconduct of robbing cash of Rs.2,000/- from two workers of Janatha Seva Cold Storage, Ankireddipalem village and in that connection, a Crime No.108/98 under Section 392 IPC was registered and the same was registered as a criminal case in C.C.No.603 of 1998, wherein he was acquitted by the Special Mobile Magistrate and in another Crime No.105 of 1998 also, which was registered as CC No.314 of 1998 for the offence under section 224 IPC, he was acquitted. In the departmental proceedings, after enquiry, the Enquiry Officer held the charge as proved, as a result of which the petitioner-applicant was dismissed. Aggrieved by the same, the petitioner-applicant filed an appeal before the 2nd respondent and the same was rejected and the revision petition before the 3rd respondent was also rejected. 4. While opposing the case of the applicant, the respondents contended before the Tribunal that the acquittal of the applicant by the Criminal Court shall not deter the departmental authorities to conduct departmental proceedings and apart from that, the applicant has managed the witnesses during the trial in the Court; and that during the departmental enquiry, the witnesses clearly stated that the petitioner- applicant robbed the cash of Rs.2,000/- from the workers of Janatha Seva Cold Storage Plant and in that case, he was acquitted only due to benefit of doubt on non-appearance of CI, who seized the robbed cash of Rs.2000/- and that the departmental authorities have strictly conducted the enquiry in accordance with the provisions of Rules 20 and 21 of the APCS (CC & A) Rules. 5. The Tribunal having observed that the evidence of P.Ws.1, 2 and 3 is sufficient to connect the applicant with the charge, dismissed the O.A. Aggrieved by the same, the petitioner-applicant filed the present writ petition. 6. Heard the learned Counsel for the petitioner and the learned Government Pleader for Services and perused the material available on record. 7. The learned Counsel for the petitioner contended that the charge in the departmental enquiry and the Criminal Case is one and the same and that the report of the enquiry officer is based on no evidence and that in the charge memo, three witnesses have been mentioned viz., Inspector of Police, Guntur Rural P.C.1378 of Guntur Taluk Police Station and Ippe Jaganmohan Rao, Supervisor Cold Storage Plant and that P.W.2 in the departmental proceedings was cited as P.W.6 in C.C.No:603 of 1998 for the crime registered under Section 392 IPC and P.W.3 in the departmental proceedings is P.W.1 in C.C.No.603 of 1998, and P.W.1 in the departmental enquiry is witness No.9, who is the investigating Officer in C.C.No.603 of 1998 and that the Special Mobile Magistrate had opined in C.C.No.603 of 1998 that the evidence of P.Ws.5 & 6 is pertaining to Crime No.105 of 1998 for the offence under section 224 IPC of Arundalpet and is not connected to this case and therefore, in the departmental enquiry, P.W.2 cannot be cited as a witness and any such evidence given by him cannot be taken into consideration for proving the charge and that the enquiry officer had traversed beyond the charge and had gone to the extent of giving a totally different finding to establish the charge. It is further contended that P.W.3, who gave complaint, stated in the cross-examination that the complaint was drawn at the instance of police and that the material witness, from whom the money was recovered, was not examined and therefore, the respondent-authorities could not have proceeded with the departmental proceedings resulting in dismissal of the petitioner- applicant from service and further, the order of the revisional authority suffers from non-application of mind. 8. In support of her contentions, the learned Counsel for the petitioner placed reliance upon a judgment of the Apex Court in G.M. Tank Vs. State of Gujarat[1] wherein it is held at paragraphs-24 and 28 as follows : “ In the case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Limited and Another, the question before this Court was as to whether the departmental proceedings and the proceedings in a criminal case launched on the basis of the same set of facts can be continued simultaneously. In paragraph 34, this Court held as under: 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, viz., 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 rather oppressive to allow the findings recorded at the exparte departmental proceedings to stand.” “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 and 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 been 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 his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed 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. The learned Counsel further placed reliance on the judgment in Chairman-cum-M.D. T.N.C.S. Corpn., Ltd., Vs. K. Meerabai[2] wherein it was held at paragraphs-18, 19, 21 and 24 as follows: “We have perused the common judgment of the learned single Judge and also of the Division Bench. What seems to have weighed predominantly with the learned single Judge was (1) acquittal of the respondent by the Court of C.J.M. Chennai; (2) an erroneous impression that both the criminal proceedings and the departmental enquiry were based upon identical set of facts; (3) an erroneous impression that both the disciplinary authority, while passing the order of dismissal and the appellate authority, while dismissing the respondent’s department appeal assigned no reasons whatsoever in support of their conclusions. We are unable to countenance the view and impression taken by the learned single Judge. In our view, the single Judge has misdirected herself in reaching the erroneous conclusion that both the criminal case in the Court of C.J.M. and the departmental enquiry were based on identical facts and charges. Similarly, the learned single Judge was patently misconceived in reaching the conclusion, that the acquittal of the respondent by the Court of C.J.M. clinched issue before the departmental enquiry, while loosing sight of the well settled law that the scope of criminal proceedings in the Court of criminal law and the scope of disciplinary proceedings in a departmental enquiry are quite distinct and exclusive and independent. While passing the impugned judgment, the learned Judges have lost sight of the following:- (i) The scope of the criminal proceedings in a criminal Code and the scope of disciplinary proceedings in a departmental enquiry are quite distinct, exclusive and independent of each other; (ii) the Criminal Proceedings in the Court of the Chief Judicial Magistrate and disciplinary proceedings were on totally different set of facts and charges; (iii) The order of dismissal dated 28.11.1991 passed by the disciplinary authority and the order dated 16.6.1994 of the Appellate Authority dismissing the respondent’s Departmental Appeal are exhaustive orders, incorporating the statement of the correct and relevant facts of the case and impeccable conclusions based on dispassionate appreciation of the evidence on record and supported by legally irrefutable reasons. The learned Counsel further placed reliance on a Judgment of the Apex Court in Hardwari Lal Vs. State of U.P. and others[3]” wherein it is held as follows: “Failure to examine material witness – Appellant, a police constable, charged of having abused his colleague while he (appellant) was under the influence of liquor – However, neither complainant nor the other employee who accompanied the appellant to hospital for medical examination, examined as witnesses –Inquiry held vitiated being in violation of natural justice –Plea rejected that there was other material sufficient to come to conclusion one way or the other, observing that impact of complainant’s testimony could not be visualized and also evidence of the employee who accompanied the appellant to hospital would also bear upon the appellant’s state of inebriation, if any.” 9. On the other hand, the learned Government Pleader vehemently contended that the acquittal in the criminal case shall not deter the departmental authorities to conduct departmental proceedings and that even though, the witnesses are one and the same, the witnesses have deposed their evidence against the petitioner-applicant and that the petitioner-applicant was acquitted only due to benefit of doubt on non- appearance of CI, who seized the robbed cash and that the Tribunal had not committed any error in passing the order impugned herein. 10. We have gone through all the material available on record. It is apparent on the face of the record that the enquiry officer examined as many as 3 witnesses. P.W.1 and P.W.2 stated that P.C 589 G.Ramesh Babu of Guntur Taluk P.S and one Home Guard No:207 Sd. Rafi went on a scooter towards Chilakaluripet Road and went to the Janatha Seva Cold Storage, Guntur and threatened one I. Jagan Mohan Rao and robbed cash of Rs.2000/- from him. On the complaint given by the said person, a case in Cr.No.109 of 1998 under section 392 was registered at Guntur Taluk P.S., and arrested both the accused and kept in the lock up. At about 9.30 p.m., both the accused escaped from the lock up and again a case in Cr.No.105 of 1998 under Section 224 was registered at Arudelpet L & O P.S. P.W.3- I. Jagan Mohan Rao stated that he worked as Supervisor in Janatha Seva Cold Storage, Guntur; and on 4.4.1998, when he was talking with workers by standing infront of the Cold Storage, the delinquent PC No.589 and HG Rafi came there in a drunken state and forcibly took Rs.2,000/- from Mahendra Singh and threatened them with dire consequences; later, they apprehended the Home Guard and detained him with a view to hand over him to the Police; and on 5.4.1998 early hours, the delinquent PC forcibly took away the Home Guard and escaped and later he made a complaint in the Guntur Taluk P.S. 11. No doubt, there is some evidence before the Enquiry Officer and on appreciation of the evidence, the Enquiry Officer held the charge as proved. While exercising judicial review, this Court cannot reappreciate the evidence. It is for the disciplinary authority to consider the evidence. In B.C. Chaturvedi V. Union of India[4], the scope of judicial review was indicated by stating that review by the Court is of decision making process and where the findings of the disciplinary authority are based on some evidence, the Court or the Tribunal cannot re-appreciate the evidence and substitute its own finding. Apart from that, the disciplinary authority is vested with the discretion to impose appropriate punishment. However, it is pertinent to note that the departmental proceedings are quasi judicial in nature and therefore, the authorities shall follow the principles of natural justice. The material on record goes to show that the appellate authority and the revisional authority have simply rejected the appeal and the revision without application of mind. It is not out of place to refer to the order of the revisional authority, which reads as under: “I have carefully examined the contentions raised by the petitioner in the light of the O.E. remarks of S.P/DIG and there is nothing new which suggests the undersigned to modify the punishment already awarded. Revision petition is rejected.” The revisional authority has to consider the matter independently in the light of the report of the enquiry officer. The above order of the revisional authority makes it clear that the same has been passed without application of any mind. Apart from that, from the material on record it is apparent that P.W.3, who gave complaint, has deposed in his cross-examination that he made the complaint at the instance of the police. Further, the material witness, from whom the money was recovered, was not examined. The Tribunal has failed to consider all these aspects. 12. In view of the nature of the proceedings, we are not inclined to substitute any finding. However, in view of the above facts and circumstances of the case, we feel it a fit case wherein the matter can be remitted back to the revisional authority so as to consider independently in the light of the report of the enquiry officer while considering the fact whether the key witnesses are examined or not. 13. Accordingly, the writ petition is disposed of setting aside the order of the Tribunal and the order passed by the revisional authority dated 26.11.2003, and remitting the matter back to the revisional authority to consider the matter afresh and pass appropriate orders within a period of two months from the date of receipt of a copy of this order. No order as to costs. __________________________ Justice Ghulam Mohammed __________________________ Justice G. Bhavani Prasad Date: 08.4.2010 Nn Note: L.R. copy is marked (B/O) Nn THE HON'BLE SRI JUSTICE GHULAM MOHAMMED & THE HON'BLE SRI JUSTICE G. BHAVANI PRASAD WRIT PETITION NO : 2034 OF 2007 (Order delivered by Hon’ble Sri Justice Ghulam Mohammed) 08.04.2010 [1] AIR 2006 SC 2129 [2] 2006-AIR Jharr-2-139 [3] (1999) 8 SCC 582 [4] (1995) (6) SCC 749