HONOURABLE SRI JUSTICE V. ESWARAIAH AND HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No. 14132 of 2009. DATED 03rd November, 2009 BETWEEN The Superintendent of Police, Guntur …….Petitioner and Tadavarthi Venkateswarlu …Respondent. HONOURABLE SRI JUSTICE V. ESWARAIAH AND HONOURABLE SRI JUSTICE VILAS V. AFZULPURKAR WRIT PETITION No. 14132 of 2009. ORDER: ( Per VE.J.) The Superintendent of Police, Guntur District has filed this Writ Petition questioning the order dated 18.09.2008 passed by the Andhra Pradesh Administrative Tribunal in O.A.No. 1857 of 2008. The said OA was filed by the respondent herein seeking a declaration that the action of the petitioner in not reinstating him in the service with all monitory benefits pursuant to his acquittal by the High Court in Criminal Appeal No. 102 of 2003 vide judgment dated 27.02.2006 as illegal, arbitrary and violative of Articles 14, 15 and 21 of the Constitution and a consequential direction to reinstate him into service with all benefits. The respondent herein joined the service of the Police Department as Police Constable on 01.07.1990 in Guntur range. While he was working as constable in Nadendla Police Station, a case was registered against him in crime No. 13 of 2001 under Section 323 IPC and Section 3(1))(x) and (xi) of SC & ST (Prevention of Atrocities) Act, 1989 on the file of the Station House Officer, Tsandole Police Station. He was found guilty of both the charges and convicted by the IV Additional District and Sessions Judge, Guntur, in SC.No. 82 of 2001 vide judgment dated 20.1.2003 and sentenced to undergo rigorous imprisonment for 3 ½ years and to pay a fine of Rs.10,000/- in default to undergo 6 months simple imprisonment for the offence punishable under Section 3(i)(x) of the SC & ST (Prevention of Atrocities) Act, and, further to pay a fine of Rs.1000/- in default to suffer simple imprisonment for a period of two weeks for the offence punishable under Section 232 IPC. Based on the said conviction, as per Rule 25(1) of the A.P. Civil Services (CCA) Rules, 1991, the respondent was dismissed from service vide order of the petitioner in proceedings C.No.114/PR/2001/D.O.No.114/2003, dated 17.02.2003. Aggrieved by the conviction and sentence, the respondent preferred appeal in Criminal Appeal No. 102 of 2003 and the High Court by judgment dated 27.02.2006 set aside the conviction and sentence recorded by the trial Court, however, convicted the respondent for the offence punishable under Section 352 IPC and sentenced him to pay a fine of Rs.500/- in default to suffer simple imprisonment for a period of one month. Pursuant to the judgment of the High Court dated 27.02.2006, the respondent submitted a representation dated 27.03.2007 to the Deputy Inspector General of Police, Guntur Range, Guntur through the Superintendent of Police Guntur requesting for reinstatement into service. It is stated that the said representation was not considered and therefore, the respondent approached the A.P. Administrative Tribunal in O.A.No.1857 of 2008. The learned Government Pleader appearing for the petitioner submits that the respondent himself is responsible for the incident leading to prosecution and conviction. He submits that the appellate Court deferred on the finding of the trial judge to the extent of holding him guilty under Section 323 of IPC as there was no proof of hurt, but holds guilty for the offence under Section 352 IPC on the allegation of assault which is punishable with imprisonment for three years or fine. He further submits that the appellate Court instead of sentencing him for imprisonment imposed fine and therefore the respondent was not honourably acquitted. Therefore, he submits that the order of dismissal dated 17.2.2003 holds good. The learned Government Pleader lastly submits that as per the revised Police Standing Orders, there is no provision for the employer to review his own order. The learned Counsel for the respondent submits that admittedly the respondent was dismissed from service pursuant to the conviction and sentence recorded by the Trial Court in its judgment dated 20.01.2003, however, the same was not approved by the High Court and thereby he was acquitted of the offence punishable under the aforesaid provisions, but he was convicted only for the offence under Section 352 IPC and sentenced to pay a fine of Rs.500/- in default to suffer one month simple imprisonment. Therefore, the respondent is entitled to be reinstated in the service as the punishment imposed on him is a minor one. He further submits that the Tribunal considering the same in the light of the judgment of the Supreme Court in Pawan Kumar Vs. State of Haryana { AIR 1996 SC 3300} wherein it was held that the punishment of fine upto a certain limit, say upto Rs.2000/- or so, on a summary/ordinary conviction shall not be treated as conviction at all for any purpose and all the more for entry into and retention in Government service, and, further relying on Police Standing Orders 194(1)&(2), allowed the OA setting aside the order of dismissal passed by the petitioner dated 17.2.2003 and directed for reinstatement of the respondent in the service. We have perused the judgment of the Supreme Court in the case of Pawan Kumar (supra), wherein the appellant was convicted in a summary trial for the offence involving moral turpitude, punishable under Section 294 IPC by the Trial Court, for which he was ordered to pay a fine of Rs.20/-. Basing on the said conviction, the appellant was terminated. In those circumstances, the Supreme Court observed that the conviction of the appellant under Section 294 IPC on its own would not involve moral turpitude depriving him the opportunity to serve the State unless the facts and circumstances, which led to the conviction, met the requirement of the policy decision. The Apex Court also observed in the aforesaid case as quoted supra in the preceding paragraph. The said quoted para is given in the judgment as an example and it was observed that rules may be framed accordingly. It is therefore wrong to consider it as a ratio of the decision. The aforesaid judgment applies and covers the issues involved in the present case. Further, Orders. 148 to 160 in Chapter 9 of the revised A.P.Police Manual deals with prosecution by or against police officers-legal Assistance-Civil Suits-Institution and defence of suits by Government. Order. 151 deals with the procedure on acquittal in a criminal case, which reads as under: 151. Procedure on acquittal in a criminal case: the following rules shall be observed where the Government servant is acquitted in a criminal Court.: 1. When a police officer has been tried and acquitted by a Criminal Court or his conviction on appeal is set aside and the same is arrived at by the Court, on the point of his conduct, he should ordinarily be reinstated. 2. 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. 3. Before deciding to launch a departmental enquiry or while disposing a pending enquiry in the case of a police officer, who is acquitted by the criminal Court, the competent authority is under an obligation to apply his mind to the requirements prescribed to decide whether it is a fit case to defer from the rule of verdict of the Court or not. The points mentioned in Order No.149-2 should be kept in mind in this regard. From above, it is clear that a police officer sentenced to fine only or released under the MPO Act, after admonition need not necessarily be dismissed or removed from service. The authority competent to pass an order of dismissal shall decide whether he deserved dismissal, removal or reduction in rank and act accordingly. As per Rule 25(1) of the A.P. Civil Services (CCA) Rules, 1963, if a Government employee is removed or dismissed or reduced in rank solely on the ground of conduct which held to his conviction on a criminal charge without complying with the requirements of the Article 311(2) of the Constitution and Rule 19(2) of the AP Civil (CCA) Rules and if his conviction is eventually set aside by the Appellate Court, or by the High Court in revision, then the order of removal, dismissal or reduction in rank as the case may be cannot stand and that order will have to be reviewed. Rule 40 of the said Rules provides that the Government or appellate authority or any competent or specified authority in this behalf, exercising the power conferred on it, may confirm, modify or set aside the order, or remit the case to the authority which made the order. Subsequent to the acquittal by the High Court and judgment of the Tribunal setting aside the dismissal order, the petitioner authorities did not take any action on the representation of the petitioner dated 27.3.2006. It is to be seen that the learned Judge of this Court considering the gravity of the offence committed by the respondent, imposed fine only. It is needless to say that the disciplinary authority has been empowered to consider the circumstances of the case where any penalty is imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge. Therefore, the authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending facts and circumstances of the case before imposing an order of punishment. For the foregoing discussion, We are of the opinion that the respondent is entitled for reconsideration of his representation by the petitioner authorities in view of the judgment of the High Court in the Criminal appeal modifying the conviction. Having regard to the facts and circumstances of the case and in the light of the foregoing discussion, we direct the petitioner to forward the representation of the petitioner made on 27-3-2006 to the Deputy Inspector General of Police, if not already forwarded, within three weeks from the date of receipt of a copy of this order so as to enable the Deputy Inspector General of Police to consider and dispose of the aforesaid representation of the petitioner within six weeks thereafter in the light of the observations made in this order, in accordance with law. The Writ Petition is disposed of accordingly. No order as to costs. -------------------------- JUSTICE V. ESWARAIAH -------------------------------------- JUSTICE VILAS V. AFZULPURKAR Dated 03rd November, 2009. Msnr.