D. Nageshwar Rao vs State Of Telangana

The present writ petition is filed seeking following relief

“….to call for the records relating to the impugned Memo.No.218/SC.A/A3/2012-1, Home, dated 23-08-2023 and its connected Memo.No.218/SC.A/A3/2012-2, dated 13.05.2014 and memo.No.218/SC/A1/2012-3, dated 24-9-2015 issued by the 1st respondent and quash or set-aside the same and consequently hold that the applicant is entitled for treating the suspension period from 1-5 -2007 to 15-5-2008 as on duty consequent on acquitting him from the charges vide G.O.Rt.No.553, Home, dated 2-4-2012 as was done in respect of other similarly situated persons with all consequential benefits including pay and allowances, seniority etc.,….”

The brief facts leading to filing of present petition are as under:

The petitioner was appointed as Sub Inspector of Police with effect from 11.09.2002 and was promoted to the post of Inspector of Police from 24.04.2012. While, the petitioner was working as Sub Inspector of Police in Peddavoora Police Station of Nalgonda District, he was placed under suspension on the ground of alleged trap conducted by ACB on 21.05.2007, later petitioner was reinstated into service on 15.05.2008. The petitioner was served on him framing two charges are as under:

“1. That you Sri Dheeravath Nageswar Rao while working as Sub-Inspector of Police, Peddavoora Police Station, Nalgonda District connived with Sri K.V.R.Mohan Rao, Police Constable 620 (C.O.in TEC No.7/2009) were actuated by corrupt motive and in abuse of your official position on 18.05.2007 at about 20.00 hours at Peddavoora Police Station, Nalgonda District demanded a bribe of Rs.5,000/- from complainant Sri Enumula Narasimha Reddy, S/o Ram Reddy, Occ.Lorry Owner, Lorry bearing No.AP-29-U-3457, R/o. Plot No.31, Mallikarjuna Nagar, Bairamalguda, Sagar Road, Hyderabad for showing official favour of releasing the detained sand Laden Lorry bearing No.AP-2-U-3457 belonging to the complainant and that thereby you are guilty of misconduct within the meaning of Rule 3 of A.P.Civil Service (Conduct) Rules, 1964.

That you Sri Dheeravath Nageswar Rao while working as Sub-Inspector of Police, Peddavoora Police Station, Nalgonda District have failed to submit our annual property returns to the Department since the date of your joining i.e. 11.06.2003 in the department as S.I. of Police and thereby you are guilty of misconduct within the meaning of Rule 3 of A.P.Civil Service Conduct Rules, 1964 r/w.Rule 2(b) of A.P. Civil Services (Disciplinary Proceedings Tribunal) Rules, 1989.”

To which, the petitioner submitted written statement denying the charges, thereafter, the matter was referred to Tribunal for Disciplinary Proceedings (for short ‘TDP) vide TEC No.6 of 2009. The TDP received proceedings after conducting enquiry into the charges against the petitioner and submitted its report to the Government on 11.04.2011 said that charges framed against the petitioner have not been proved.

However, the Government issued Memo.No.723/ SC.A/A3/ 2007-12, dated 21.11.2011 disagreeing with the findings of the TDP in respect of Charge-2 on the ground that as per G.O.Ms.No.52,GAD., dated 04.02.1988, every Government employee other than a member of last grade service and a Record Assistant in the A.P.General Subordinate Service shall on first appointment to the Government service submit to Government a statement of all immovable properties irrespective of its value and movable properties value exceeds Rs. 5,000/- and if in any year and a Government employee has not acquired or disposed of any immovable property or any interest therein, he shall submit declarations to that effect and directed the petitioner to offer his explanation if any. The petitioner submitted his explanation on 31.12.2011 that he was never directed to submit the statements/declarations and that he has not acquired any properties from the date of inception into service.

The Government after detailed examination issued G.O.Rt.No.553, Home, dated 02.04.2012 to drop further action against the applicant on the allegation of corruption as well as the allegation of non submission of Annual Property Returns to the competent authority, duly exonerating him from the charges, since the charges were held not proved by the TDP. The respondent No.4 issued R.O.No.673/2012, dated 20.04.2012 exonerating the applicant from the charges. Thereafter, the applicant made representation to the Government on 22.06.2012 requesting to treat suspension period as on duty in terms of F.R.54-B(3) of the Fundamental rules as was done in respect of other similarly situated persons.

The Government issued impugned memo.No.218/SC.A/ A3/2012-1, dated 23.08.2013, which was communicated to the petitioner in d.O.No.3288/2013, dated 07.11.2013, the Superintendent of Police informed the petitioner in respect of Charge-2, it is not a clean exoneration from the charges and it was decided and ordered to treat the period of suspension from 01.05.2007 to 15.05.2008 in respect of the applicant as not on duty since there was adequate justification for placing the individual under suspension. The petitioner submitted another representation, dated 08.11.2013 with request to TDP treat the suspension period as on duty since a differential yardstick has been taken in respect of his case while taking decision to treat the suspension period of similarly situated persons as on duty consequent on dropping the charges against him and that same is contrary to G.O.Rt.No.553, dated 02.04.2012. However, the Government rejected the request of the petitioner by Memo. No.218/SC.A/A3/2012-2, dated 13.05.2014. The petitioner made another representation to the Government on 22.5.2015 to reconsider the decision, however the Government finally issued Memo.No.218/SC/A1/2012-3, dated 24.09.2015 rejecting the request of the petitioner.

The petitioner contended that he is entitled to all service benefits like treating the suspension period as on duty, seniority and promotion in term of the Fundamental rules, in the light of exoneration from the charges vide G.O.Rt.No.553, Home, dated 02.04.2012. The government has been taken different yardstick with that of the cases of similarly situated persons like Sri Farzalur Rahman, DSP, Sri D.Ravi Kumar, DSP, T.Murali Krishna, Inspector of Police Hyderabad Range, Sri S.V.Hari Krishna, Inspector of Police, Hyderabad Range, Sri Mohd.Salaluddin, SI of Police, Hyderabad Range whose suspension period was treated as on duty after their acquittal by the Hon’ble Courts.

The Principal Secretary, Home filed counter on behalf of respondent No.1. It is contended that Sri E.Narasimha Reddy submitted complaint with Joint Director, ACB, City Investigation Unit, Hyderabad and it is stated that petitioner demanded Rs. 10,000/- as bribe (subsequently, the same amount reduced to Rs. 5,000/-) to release his sand lorry otherwise vehicle would not be released and request the ACB to take action against the petitioner. The complainant was not willing to pay the said amount to petitioner and therefore, lodged complaint with ACB and request to take action.

On receipt of complaint, the Inspector of Police, Crime Investigation Unit, ACB, Hyderabad made confidential enquiries with regard to the genuineness of the complaint and reputation of the Charged Officer and thereafter, registered case in Cr.No.13/ACB-CIU-Hyd/2017 under section 7 of the Prevention of Corruption Act, 1988, dated 18.05.2007 while obtaining permission from competent authority and laid a trap against the petitioner. On recommendation of the Director General, ACB, Telangana, Hyderabad in his final report, the matter was referred to the Tribunal for disciplinary proceedings for enquiry and two charges were framed against the petitioner.

The Tribunal submitted a report that chargers framed against petitioner were not proved. The “TDP”, in its finding on Charge No.1 stated that PW.1, the owner of the lorry and PW.6, the driver of the lorry and PW.2, the person joined along with PW.1 to ACB officials turned hostile and there is no material piece of evidence available on record to show that the petitioner had demanded bribe of Rs.5,000/-. Further, the panch witness Investigation Officer have reported that petitioner has not received any amount and they could not secure the presence of any amount either in the hands or in the pocket of the petitioner and even the phenolphthalein test was also proved negative and thus, the prosecution failed to prove the demand of bribe amount by the petitioner.

With regard to Charge No.2, the “TDP” observed that the prosecution could not make out any case to the effect that the petitioner acquired any assets during his service. Since, no assets were acquired by the petitioner, the question of submission of the property statements does not arise. The representation submitted by the petitioner for regularization the period of suspension from 01.05.2007 to 15.05.2008 as on duty was considered by the Government. However, on detailed scrutiny of findings of the Tribunal for disciplinary proceedings, although the Government accepted the findings and dropped further action. It was observed that the exoneration was not clean from the charges and that charge as witness to Charge No.1 tuned hostile to the prosecution and essentially the charge No.2 was established although held not proved on account of an apparently erroneous interpretation of the rules. Therefore, the Government decided to treat the period of suspension as not on duty since there was adequate justification for placing the individual under suspension and thus, issue rejection orders vide Government Memo.No. 218/SC.A/A3/2012-1, dated, 23.08.2013.

Interestingly, the counter neither refer to nor offer any comments on the specific contentions of petitioner that different yardstick has been applied by the Government to the petitioner with that of similarly placed employees.

Heard Sri B.Subash, learned counsel for the petitioner and Sri M.V.Rama Rao, Special Government Pleader for Home appearing on behalf of respondents.

Consideration:

The undisputed facts which emerges from the pleadings and contentions of both the parties are that, petitioner was appointed as Sub-Inspector of Police w.e.f. 11.09.2002 and was promoted to the post of Inspector of Police from 24.04.2012. While, the petitioner was working as Sub-Inspector of Police in Peddavoora Police Station, he was placed under suspension on the ground of alleged trap conducted by ACB on 21.05.2007. However, the petitioner was reinstated into service on 15.05.2008. Charge-memo was issued framing the charges on the petitioner. Petitioner submitted his reply denying the charges and the matter was referred to TDP and the TDP submitted its report to the Government on 11.04.2011 with the conclusion that charges framed against the petitioners have not been proved.

The Government issued Memo dated 21.11.2011 disagreeing with the findings of the TDP in respect of charge-2 on the ground that as per G.O.Ms.No.52, dated 04.02.1988, every government employee other than a member of last grade service and a record assistant is required to submit statement of all the immovable properties irrespective of its value and movable properties value exceeds Rs.5,000/-. Petitioner submitted his explanation on 31.12.2011 stating that he was never directed to submit the statements/declarations and that he did not acquire any property from the date of joining the service.

The Government vide G.O.Rt.No.553, dated 02.04.2012 dropped further action against the petitioner since the charges were held not proved by the TDP. Respondent no.4 issued proceedings dated 20.04.2012 exonerating the petitioner from the charges. Thereafter, petitioner submitted representation dated 22.06.2012 to the Government requesting to treat the suspension period as on duty in terms of FR 54-B(3) of the Fundamental rules as has been done in respect of other similarly placed persons. However, the Government vide impugned Memo dated 23.08.2013 decided and ordered that the period of suspension from 01.05.2007 to 15.05.2008 as not on duty on the ground that exoneration is respect of Charge-2 is not a clear exoneration and that there was adequate justification for placing the petitioner under suspension.

Petitioner submitted another representation dated 08.11.2013 with a request to Government to treat the suspension period as on duty since a differential yardstick has been applied in respect of his case with that of the similarly placed persons and that the same is contrary to G.O.Rt.No.553, dated 02.04.2012. The said request of the petitioner was rejected by the Government vide Memo dated 13.05.2014. Petitioner submitted another representation dated 22.05.2015 to the Government to reconsider his case. However, the Government issued Memo dated 24.09.2015 rejecting his request. Therefore, petitioner filed the present writ petition.

The principal contention of the petitioner is that in terms of FR 54-B(3), on acquittal, the suspension period of the petitioner has to be treated as on duty. Therefore, the impugned Memo dated 23.08.2023 and its connected Memo dated 13.05.2014 and also Memo dated 24.09.2015 issued by the 1st respondent are contrary to the fundamental rules and are liable to set aside/quashed. It is further contention of the petitioner that the Government is applying different yardstick to other employees, who are similarly placed persons.

In the representation dated 08.11.2013 submitted by the petitioner, he has mentioned the cases of five employees whose suspension period was treated as on duty. It is further mentioned that the five officers are similarly placed persons, whose suspension period was treated as on duty on acquittal from the ACB cases. Along with the representation, petitioner had also enclosed copy of G.Os issued treating the suspension period as on duty in respect of five officers. In the writ affidavit also, petitioner had given the details of few officers as well as G.Os issued by the Government treating the suspension period as on duty.

It is interesting to note that counter filed on behalf of respondents by the Principal Secretary to the Government is silent on the specific allegations of applying different yardstick to the petitioner with that of the similarly placed other officers. Further, the respondents did not even advert to the contention of the petitioner with regard to applying different yardstick to five officers nor that the facts and circumstances of those cases are different or cannot apply to the case of the petitioner.

It is relevant to extract FR 54-B(3) & (4), which read as under:

“(3) Where the authority competent to order reinstatement is of the opinion that the suspension was wholly unjustified, the Government servant shall subject to the provisions of sub-rule (8), be paid the full pay and allowances to which he would have been entitled, had he not been suspended:

Provided that where such Authority is of the opinion that the termination of the proceedings instituted against the Government servant had been delayed, due to reasons directly attributable to the Government servant, it may after giving him an opportunity to make his representation (within sixty days from the date on which communication to this regard is served o him) and after considering the representation, if any submitted by him, direct for reasons to be recorded in writing, that the Government servant shall be paid for the period of such delay (only such amount (not being the whole) of such pay and allowances as it may determine).

(4) In a case falling under sub-rule-(3) the period of suspension shall be treated as a period spent on duty for all purposes.”

Perusal of FR 54-B(3) and (4), it is clear that on acquittal of cases and exoneration of charges, the suspension period of the charged employee has to be treated as on duty.

In the present case, the respondents tried to justify the action in not treating the suspension period as on duty on the ground that so far as charge-2 leveled against the petitioner is concerned, the same is not a clean exoneration since the complainant turned hostile. It is relevant to note that petitioner is acquitted from all the charges and is exonerated from the charges leveled against him by the TDP.

Further, having decided to drop all the proceedings against the petitioner, in the light of report of the TDP that the charges are not proved against the petitioner, the Government is not justified in rejecting the request of the appellant to treat the suspension period as on duty on the ground that the acquittal in criminal cases is not a clean exoneration. The decision of the Government in the impugned memos is also not sustainable as the Government failed to answer nor given any justification on the contention of appellant that different yardstick has been applied, despite specific allegation and mention of instances by the petitioner.

The learned counsel for the appellant relied upon the decision of learned single Judge of this Court in W.P.No.21950 of 2017 dated 22.11.2022, wherein having regard to the facts of the case, the learned single Judge directed the Government to regularize the suspension period as on duty for all purposes including the arrears of pay and allowances, increments and promotion etc in terms of FR 54-B(4).

Learned counsel for the appellant also relied upon the judgment of Hon’ble Apex Court in M/s.Neeharika Infrastructure Pvt. Ltd., vs. State of Maharashtra and others in Criminal Appeal No.330 of 2021 dated 13.04.2021 in support of his contention that the adjudicating authority shall record reasons even in administrative decisions, if such decisions affect anyone prejudicially.

On the other hand, learned Government Pleader for Home relied upon the decision of the Hon’ble Apex Court in Greater Hyderabad Municipal Corporation vs. M.Prabhakar Rao (2011) 8 SCC 155 in support of his contention that FR 54-B(3) empowers competent authority to grant full pay and allowances for period of suspension to delinquent employee, even where criminal proceedings culminate in acquittal due to non-availability of evidence, and the authority concerned can decide whether such employee deserves any salary for intervening period and if so, to what extent. The Hon’ble Apex Court held as under:

“15. Sub-rule (3) of FR 54-B does not state that in case of acquittal in criminal proceedings the employee is entitled to his salary and allowances for the period of suspension. Sub- rule (3) of FR 54-B also does not state that in such case of acquittal the employee would be entitled to his salary and allowances for the period of suspension unless the charge of misconduct against him is proved in the disciplinary proceedings. Sub-rule (3) of FR 54-B vests power in the competent authority to order that the employee will be paid the full pay and allowances for the period of suspension if it is of the opinion that the suspension of the employee was wholly unjustified. Hence, even where the employee is acquitted of the charges in the criminal trial for lack of evidence or otherwise, it is for the competent authority to form its opinion whether the suspension of the employee was wholly unjustified and so long as such opinion of the competent authority was a possible view in the facts and circumstances of the case and on the materials before it, such opinion of the competent authority would not be interfered with by the Tribunal or the Court.”

In the present case, the petitioner was acquitted from criminal case and was also exonerated by the Tribunal for Departmental Proceedings. The competent authority had not recorded valid reasons nor there is any justification for not treating the suspension period of petitioner from 01.05.2007 to 15.05.2008 as on duty. Further, counter is silent as to why benefit under FR 54-B(3) was not extended to the petitioner, as was extended to the other similarly placed employees as contended by the petitioner and despite providing specific instances.

Taking into consideration the facts, circumstances and the law laid down by the Apex Court in the judgments referred to and discussed above, this Court is of considered opinion that the impugned orders cannot be sustained.

Accordingly, the Writ Petition is allowed setting aside the impugned Memo.No.218/SC.A/A3/2012-1, Home, dated 23-08-2023 and its connected Memo.No.218/SC.A/A3/2012-2, dated 13.05.2014 and memo.No.218/SC/A1/2012-3, dated 24-9-2015 issued by the 1st respondent. Consequently, the respondents are directed to regularize the suspension period (out of employment period) of the petitioner from 01.05.2007 to 15.05.2008 as on duty for all purposes including the arrears of pay and allowances, increments and promotion etc. in terms of FR-54(B)(4) and pass appropriate orders within a period of one month from the date of receipt of the copy of the order. There shall be no order as to costs.

As a sequel, miscellaneous petitions pending, if any, shall stand closed.