*THE HONOURABLE SRI JUSTICE GHULAM MOHAMMED AND THE HONOURABLE SRI JUSTICE G.CHANDRAIAH +W.P. Nos.10110 & 10111 OF 2010 % 13-07-2010 #Kodavanti Basava Raju ….petitioner Vs. $ Government of Andhra Pradesh, rep. by its Secretary, Home (Court-C) Department, Hyderabad and three others …. Respondents !Counsel for the petitioner : Sri M.Pandu Ranga Rao Counsel for the Respondents: Sri G.Vidyasagar, Standing Counsel for A.P.H.C. ( Respondent Nos.2 to 4) G.P for Law for respondent No.1 <Gist : >Head Note: ? Cases referred: 1. AIR 1999 SC 1416 2. 1990(Supp) SCC 738 3. (2005) 6 SCC 636 4. 2001 (4) ALD 535 (D.B) THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITIONS NO.10110 AND 10111 of 2010 13-07-2010 COMMON ORDER: (Per Hon’ble Sri Justice Ghulam Mohammed) W.P.Nos.10110 and 10111 of 2010 Kodavanti Basava Raju … Petitioner and Govt. of Andhra Pradesh rep. by its Secretary, Home (Court-C) Department, Secretariat, Hyderabad and three others … Respondents THE HON’BLE SRI JUSTICE GHULAM MOHAMMED AND THE HON’BLE SRI JUSTICE G.CHANDRAIAH WRIT PETITIONS NO.10110 AND 10111 of 2010 COMMON ORDER: (Per Hon’ble Sri Justice Ghulam Mohammed) The petitioner is one and the same in both the writ petitions, the subject-matter is connected and as such, the writ petitions are being decided by this common order. 2. W.P.No.10110 of 2010 has been filed seeking writ of mandamus declaring the action of the Registrar (Vigilance), High Court of Andhra Pradesh, Hyderabad, in keeping the petitioner under deemed and continued suspension service retrospectively from 12-4-2003, even though reinstated into service after acquittal by the Hon’ble High Court, as illegal and arbitrary. W.P.No.10111 of 2010 has been filed challenging the action of the said Registrar (Vigilance) in issuing a charge-sheet vide his order ROC No.513/1996-Vigilance Cell, dated 19-3-2009. 3. The details necessary for deciding the cases are that the petitioner was selected as District Munsif by Andhra Pradesh Public Service Commission and he joined the service on 08-10-1985 and in March, 1992, he was promoted as Subordinate Judge and was initially posted at Miryalaguda, Nalgonda district and thereafter at Narsapuram, West Godavari district. It was alleged that the petitioner while working as Subordinate Judge, Narsapuram, had promised Smt. N.Nagamma, the then Steno- typist working at Subordinate Court, Narsapuram, to marry her and induced her to have sexual intercourse even after the petitioner’s transfer to Visakhapatnam and when she visited Visakhapatnam to meet the petitioner in his office chambers, she was asked to come to his residence and at his residence, the petitioner’s wife insulted and abused Smt. N.Nagamma and unable to bear the cheating and insults, she swallowed sleeping pills with a view to commit suicide and further, she was treated in K.G.Hospital and her oral statement was recorded by the police concerned in Visakhapatnam city and a case in Crime No.138 of 1996 was registered for the offences under Section 376 and 417 of Indian Penal Code basing on the allegation that the petitioner had carried on cohabitation with N.Nagamma, the then Steno-typist working in Subordinate Court, Narsapur, West Godavari district, with an inducement to marry her. 4. The petitioner had been kept under suspension vide Order ROC No.513/96-VIGILANCE CELL dated 20-7-1996 with effect from 23-7-1996, pending the said criminal case. The criminal case was subsequently numbered as S.C.No.228 of 2001 on the file of III Additional Sessions Judge, Visakhapatnam, and during the trial, N.Nagamma was examined as PW-1 besides other witnesses and documents marked, and ultimately, the learned Sessions Judge convicted the petitioner for the offences under Sections 376 and 417 of Indian Penal Code and sentenced to undergo three years simple imprisonment and to pay a fine of Rs.1,000/-, in default to suffer one month simple imprisonment and one year simple imprisonment and to pay a fine of Rs.1,000/-, in default to suffer one month simple imprisonment, respectively. Pursuant to the conviction, the petitioner was dismissed from service vide G.O.Ms.No.41, Law (LA&J – Home Courts-C1) Department, dated 22-3-2003. The petitioner challenged the conviction and sentence vide Criminal Appeal No.979 of 2002 before the A.P. High Court in which the petitioner and PW-1 victim (N.Nagamma) filed Crl.M.P.No.513 of 2008 seeking permission to compound the offence punishable under Section 417 IPC, which was ordered, and the conviction and sentence recorded by the trial court in respect of the offence under Section 417 IPC was set aside and he was acquitted of the said offence. Further, the High Court, after appreciating the evidence on record, acquitted the petitioner of the offence under Section 376 IPC also vide judgment dated 14-3-2008 in Crl.A.No.979 of 2002. After petitioner’s acquittal, he was reinstated into service as Senior Civil Judge vide G.O.Ms.No.158 Home (Courts-C) Department, dated 03-10-2008. However, the Registrar (Vigilance) of High Court of Andhra Pradesh had issued Order ROC No.513/1996-VIGILANCE CELL dated 23-6-2009 keeping the petitioner under suspension and the same is challenged in W.P.No.10110 of 2010. Further, the Registrar (Vigilance) had issued charge sheet vide Order ROC No.513/1996- Vigilance Cell, dated 19-3-2009 proposing to conduct a departmental enquiry, which is questioned by way of W.P.No.10111 of 2010. 5. Heard Sri M.Panduranga Rao, learned counsel for the petitioner and Sri G.Vidyasagar, learned standing counsel for the respondent – High Court of Andhra Pradesh. 6. Learned counsel for the petitioner contended that when the petitioner was dismissed from service basing upon the conviction and sentence recorded in a criminal case and subsequently reinstated into service upon acquittal in appeal, Rule (4) of A.P. Civil Services (Classification, Control and Appeal) Rules, 1991 (for short ‘the Rules’) is not attracted. Learned counsel contended that the suspension continued indefinitely and initiating disciplinary proceedings at this stage will cause prejudice to the petitioner. Learned counsel further contended that when once the suspension order merges with dismissal order, and Government has taken a decision to reinstate the petitioner into service, the effect of reinstatement is that it will go back to the original position and the petitioner will be entitled to all the benefits. He has drawn our attention to the dictionary meaning of the word ‘reinstate’, which means restore someone or something to their former position or state, and contended that the original suspension order merged with dismissal order which was based on the conviction and ultimately resulted in reinstatement upon acquittal and therefore, the entire period from the date of suspension till the date of reinstatement has to be treated as on duty with all consequential benefits. Learned counsel further stated that the incident is of the year 1996, the employee was placed under suspension and the prolonged suspension continued and ultimately the suspension culminated into the order of dismissal and from the date of dismissal till the date of reinstatement, the petitioner has not faced any suspension and as such, the said period has to be treated as on duty. Learned counsel for the petitioner has relied upon the decisions of the Supreme Court in M.PAUL ANTHONY Vs. BHARAT GOLD MINES LTD[1], STATE OF MADHYA PRADESH Vs. BANI SINGH[2], P.V.MAHADEVAN Vs. MD, T.N.HOUSING BOARD[3] and S.K.RAMJU Vs. REGIONAL MANAGER, APSRTC, NALGONDA DIST[4] and contended that where the departmental proceedings and criminal case are based on identical set of facts and evidence is both proceedings common, the acquittal of the accused in the criminal case, concludes the departmental proceedings and no further departmental proceedings can be initiated, and that it is not permissible to initiate the disciplinary proceedings with inordinate delay. 7. Countering the above submissions, learned standing counsel for the High Court of Andhra Pradesh appearing for respondents 2 to 4 contended that Rule 8(4) of the Rules is applicable as the reinstatement order was passed on 03-10-2008 vide G.O.Ms.No.158 Home (Courts-C) Department, without prejudice to the right to take appropriate departmental action against the petitioner and thus, the reinstatement was subject to certain conditions. He further contended that the reinstatement comprises of two parts – one absolute reinstatement and the other is reinstatement without prejudice to the right to take disciplinary action. 8. We have considered the rival submissions of both the counsel and perused the petition averments and material on record. The points that arises for consideration is whether the Registrar is justified in keeping the petitioner under deemed suspension until further orders especially when there is order of reinstatement and whether initiation of departmental enquiry is justified. 9. At the outset, it is to be noted that the petitioner, while working as Subordinate Judge, Narsapuram, West Godavari district, was prosecuted for the offences punishable under Sections 376 and 417 of Indian Penal Code vide Sessions Case No.228 of 2001 on the file of III Additional District Judge, Visakhapatnam. The petitioner was kept under suspension pending the criminal charge. After the trial, the petitioner was convicted and sentenced as aforestated for the offences punishable under Sections 376 and 417 of Indian Penal Code. The matter was carried in appeal to the High Court vide Crl.A.No.979 of 2002 and in the appeal, PW1–victim and the petitioner/accused have filed Crl.M.P.No.513 of 2008 seeking permission to compound the offence punishable under Section 417 IPC and the petition came to be ordered. Thus, the petitioner was acquitted of the offence punishable under Section 417 IPC and ultimately, the petitioner was also acquitted of the offence punishable under Section 376 IPC. Thereafter, the petitioner was reinstated into service considering the acquittal judgment of the High Court in Crl.A.No.979 of 2002 dated 14-3-2008 subject to certain conditions. 10. The grievance of the petitioner is that he is placed under deemed suspension retrospectively with effect from 12-04-2003 even after reinstatement into service after acquittal by the High Court and the disciplinary proceedings under Rule 20 of the Rules are initiated. 11. A perusal of the charge-sheet dated 19-3-2009 shows that the following articles of charges are framed against the petitioner: “Articles of Charge No.1: That you Sri K.Basava Raju, formerly Subordinate Judge, Narsapur, West Godavari district, now reinstated into service by virtue of G.O.Ms.No.158 Home (Courts-C) Department, dated 3-10-2008 and waiting for order of your posting as Senior Civil Judge, while working as Subordinate Judge, Narsapur, started to behave in an indecent manner with Ms.Nagamma, a newly recruited stenographer posted to work under you, by touching her hands, breasts, cheeks and used to kiss her, while she was attending to the dictation work in between 8.30 a.m. and 10 a.m. in the chamber attached to the court of Sub-Judge, Narsapur, and when the said stenographer scared off you and used to run away from the chamber, as she was new to employment, you used to accost her to return to the chamber and used to express angry and threaten her for running away from you, thus you misbehaved with a subordinate employee, who was working under you, which act of yours if proved or established would amount to grave misconduct, unbecoming of a judicial officer within the meaning of Rule 3©(e) of A.P.C.S. (Conduct) Rules, 1964. Articles of Charge No.2: That you Sri K.Basava Raju, formerly Subordinate Judge, Narsapur, West Godavari district, now reinstated into service by virtue of G.O.Ms.No.158 Home (Courts-C) Department, dated 3-10-2008 and waiting for order of your posting as Senior Civil Judge, while working as Subordinate Judge, Narsapur, applied for commuted medical leave for 30 days from 27-9-1994 to 26-10-1994 and after few days of your joining duty, you started giving dictation to Ms. Nagamma between 8.30 a.m. to 10 a.m. and all of a sudden you stopped dictation and caught hold of her hand, dragger her towards the toilet of your chamber, in spite of her resistance, laid her on the floor of the toilet and forcibly had sexual intercourse against her will, thus you exceeded your limits as a Judicial Officer, acted in a manner which is derogatory to the prestige of judiciary, which act of yours if proved or established would amount to grave misconduct, unbecoming of judicial officer within the meaning of Rule 3(c)(a) of A.P.C.S. (Conduct) Rules, 1964. Article of Charge No.3 That you Sri K.Basava Raju, formerly Subordinate Judge, Narsapur, West Godavari district, now reinstated into service by virtue of G.O.Ms.No.158 Home (Courts-C) Department, dated 3-10-2008 and waiting for order of your posting as Senior Civil Judge, while working as Subordinate Judge, Narsapur, had sexual intercourse with Ms. Nagamma, newly recruited stenographer and posted to work in your court, against her will in the toilet of the chamber of Sub-Court, Narsapur, and later threatened her, that if she raises any cries, you would propagate that she has taken you to the toilet and she herself offered you to have sexual intercourse with her, thus you blackmailed your subordinate staff i.e. Ms. Nagamma, stenographer of Sub-Court, Narsapur, which act of your if proved or established would amount to grave misconduct, unbecoming of a judicial officer within the meaning of Rule 3 and 3(c) of A.P.C.S. (Conduct) Rules, 1964. Articles of Charge No.4 That you Sri K.Basava Raju, formerly Subordinate Judge, Narsapur, West Godavari district, now reinstated into service by virtue of G.O.Ms.No.158 Home (Courts-C) Department, dated 3-10-2008 and waiting for order of your posting as Senior Civil Judge, while working as Subordinate Judge, Narsapur, continued the illicit relationship/intimacy with Ms. Nagamma, stenographer of the court, while you were working as Sub Judge Narsapur and also after your transfer as Principal Senior Civil Judge, Visakhapatnam, by visiting Narsapur and Bhimavaram, frequently and had sexual intercourse with her and developed illicit intimacy with her, luring her, her mother and brother, that you will marry her after your promotion as Additional District Judge and subsequently you informed about your unwillingness to marry to her, in spite of illicit relationship/intimacy continued with her for a long time, deceived her, which acts of yours, if proved or established would amount to grave misconduct, unbecoming of judicial officer within the meaning of Rule 3 & 3(c)(a) of A.P.C.S. (Conduct) Rules, 1964. Articles of Charge No.5: That you Sri K.Basava Raju, formerly Subordinate Judge, Narsapur, West Godavari district, now reinstated into service by virtue of G.O.Ms.No.158 Home (Courts-C) Department, dated 3-10-2008 and waiting for order of your posting as Senior Civil Judge, while working as Subordinate Judge, Narsapur, continued your illicit intimacy/relationship with Ms. Nagamma, stenographer of Sub Court, Narsapur, inspite of your transfer to Visakhapatnam and used to make correspondence with the said stenographer, Ms. Nagamma, by writing letters to her dated 20-6-1995, 26-7-1995, 19-8- 1995, 22-8-1995, 11-9-1995, 07-10-1995, 23-11-1995, 14-12-1995, 27-12-1995, 11-5-1995 and 23-2-1996 and tried to be in touch with her through your correspondent, thus you exceeded your limits and continued the illicit relationship with your subordinate staff, which a judicial officer ought not to have developed or continued, which act of yours if proved or established would amount to grave misconduct, unbecoming of a judicial officer within the meaning of Rule 3 of A.P.C.S. (Conduct) Rules, 1964. Articles of Charge No.6 That you Sri K.Basava Raju, formerly Subordinate Judge, Narsapur, West Godavari district, now reinstated into service by virtue of G.O.Ms.No.158 Home (Courts-C) Department, dated 3-10-2008 and waiting for order of your posting as Senior Civil Judge, while working as Subordinate Judge, Narsapur, initially had sexual intercourse with Ms. Nagamma, stenographer of the court, thereafter got yielded her to your list and had intercourse with her several times at Narsapur and also in the RTC Guest House and private lodge at Rajahmundry and subsequently deceived and discarded her, when she approached you at your official residence in the District Court premises at Visakhapatnam on 22-4-1996, moving the marriage proposal with you, but you and your wife scolded and necked out Ms. Nagamma in the presence of Sri L.Kedarachary, the then I Senior Civil Judge, Visakhapatnam, due to which, stenographer, Ms. Nagamma, made an attempt to commit suicide by swallowing 20 sleeping pills in front of your official residence in District Court premises, Visakhapatnam, preparing a suicide note, addressed to the Hon’ble the Chief Justice, High Court of A.P., Hyderabad, and hospitalized, thus you deceived her luring her that you will marry but subsequently discarded her, which act of yours, if proved or established would amount to grave misconduct, unbecoming of judicial officer within the meaning of Rule 3 & 3(C) of A.P.C.S. (Conduct) Rules, 1964.” 12. A reading of the order dated 19-3-2009 shows that disciplinary proceedings are initiated against the petitioner under Rule 20 of the Rules basing on the observations of the High Court in its judgment 14-3-2008 in Crl.A.No.979 of 2002, which read as under: “19. It is admitted fact that PW-1 was a post-graduate and was aged 26 years as on the date of her joining as Steno- Typist in the Court of the Subordinate Judge, Narsapur. It is her version that the accused ravished her for the first time in October, 1994 against her will and subsequently promised her to marry which he failed to fulfil. It is admitted by her that she had intercourse with the appellant/accused on various occasions at various places. For better appreciation, I may refer the relevant portion of the cross- examination of PW-1 in her own words and it is thus: “ …. He had sexual intercourse with me for more than 10 times. I did not find any salient physical features on his person. A week day after the commission of the 1st rape, he has committed the 2nd rape on me. I did not give any transfer application in writing to the accused. Witness adds that I orally requested him to forward my application. I did not request even our union leaders to make some efforts for my transfer from Narsapur to some other place while the accused was working as Sub Judge, there…” Her version of the accused committing rape on her for the first time in October, 1994 is contradicted by her own statement which formed the basis for registering a case in Crime No.96 of 1996. The relevant portion of her statement has been extracted supra. She voluntarily made a statement that her physical union with the appellant/accused is subsequent to his promise to marry after getting promotion as Additional District Judge. Indisputably, the appellant/accused is a married man and father of two children. This fact is very much within the knowledge of PW-1. Her version that the appellant/accused ravished her in the toilet in the month of October, 1994 proved to be highly doubtful by her own statement, certified copy of which has been exhibited as Ex.D-1. Had there been any incidents in October and November, 1994, she should have definitely stated those incidents in Ex.D-2 statement which happens to be the virgin version of her affair with the appellant/accused. In short, her version about the first incident of rape bristles with improbabilities, improvements and exaggerations. I have gone through the bunch of letters, which have been marked as Ex.P-1. The text of the letters indicates that they traveled beyond the relationship of the Officer and the Steno-Typist. Their conduct is condemnable. Both are to be held responsible for overstepping their official association. It is not a case to pardon the act of the victim – PW-1 and fasten criminal liability on the appellant/accused. Certain admissions made by PW-1 in cross-examination suggest that both of them accommodative to each other. For better appreciation, I may refer the evidence of PW-1 in her own words and it is thus: “… The accused used to visit me at Bheemavaram once in a month or once in two months, after he transferred to Visakhapatnam. We used to treat him as our family member. My brother did not object for our privacy or for the visits of the accused. I did not send Laxmipathi to Visakhapatnam when the accused stopped to visit me since January, 1996…” This statement creates a doubt on her version that she was subjected to sexual intercourse in spite of her resistance. The conduct of PW-1 in continuing her association with the appellant/accused even after his transfer from Narsapur to Visakhapatnam in April, 1995 for a period of about an year clearly suggests that her questionable relationship with appellant/accused at any rate is not against her will. Therefore,the evidence brought on record is wholly insufficient to conclude that PW-1 was not a consenting party. The convicting recorded by the trial court for the offence under Section 376 IPC is vitiated by non-consideration of material evidence and relevant factors emerging from the prosecution evidence and therefore, the same cannot be sustained.” 13. It is pertinent to refer to the relevant portion of G.O.Ms.No.158, Home (Courts-C) Department, dated 03-10-2008, by which the petitioner was reinstated into service, which reads: “5. The Andhra Pradesh High Court upon considering the judgment of Hon’ble High Court and requested the Government to reinstate the officer into service, without prejudice to right to take appropriate departmental action against the officer by the High Court. 6. Under the circumstances reported by the Registrar (Vigilance), High Court of Andhra Pradesh, and also above orders of the Hon’ble High Court of A.P. in Crl.A.No.979 of 2002 on the judgment dt. 14-3-2008, Government after careful consideration of the matter hereby reinstate the individual without prejudice to right, to take appropriate departmental action against the officer by the High Court.” 14. The grounds urged by the petitioner are that he was acquitted of the criminal charge under Section 376 IPC by the High Court; that there was no observation in the said judgment by the criminal appellate court to initiate disciplinary proceedings; that the petitioner was acquitted of the criminal charge and basing on the same set of facts and evidence, departmental proceedings cannot be launched separately; that the petitioner would be put to serious prejudice as the disciplinary proceedings is sought to be initiated more than 13 years after the alleged incident and that when the petitioner is reinstated into service on the basis of acquittal in criminal case, he is entitled to all the benefits as the order of suspension merged with the dismissal order and from the date of dismissal till reinstatement, he was not under suspension. 15. It is seen from G.O.Ms.No.158 dated 03-10-2008 that the petitioner has been reinstated into service without prejudice to the right of the department to take disciplinary action. In other words, the reinstatement into service is not absolute and it was always open to the department to initiate the disciplinary action. In order to appreciate the contention of the learned counsel for the petitioner that Rule 8(4) of the Rules is not attracted and the order of suspension merges with the order of dismissal pursuant to conviction, and when reinstatement is ordered upon acquittal by the Court, the petitioner is entitled to all consequential benefits, it is necessary to refer to Rules 8(4) and (5) of the Rules, which read: “(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void, in consequence of or by a decision of a course of law an the authority competent to impose the penalty, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the authority competent to impose the suspension from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further: Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the court has passed an order purely on technical grounds without going into the merits of the case. (5) (a) An order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority which made or is deemed to have made the order or by an authority to which that authority is subordinate. (b) Where a Government servant is suspended or is deemed to have been suspended, whether in connection with