H#:s:iiilt v. closing of depdrtmentar proceedings

Heard Sri K.S.Sunit, learned counsel appearing on behalf of the petitioner and the tearned Government Pleader for panchayat Raj and Rural Development appearing on behalf of the respondent Nos.I and 3 to 5 and Smt. Shalini, learned Assistant Government pteader for services-u appearing on beharf ofthe respondent No.2.

2. The oetitronera D roac hed heCo rt under: p!'a r Direction of Writ ..to issue an appropriate Writ or more particularly in the nature Order, Mandamus, declaring the action of the respondents in not reinstating the petitioner into services in spite of the acquittal in the criminal case in CC No.290 of 2013 on the file of IFCM at Jadcherla, dt.31.12.2019 and closing of departmental proceedings, as illegal, arbitrary and against the setfled principles of law and consequenfly direct the respondents to reinstate the petitioner into services with all back wages and continuity of service and to pass....." 2

3. The case of the petitioner' in brief is that the petitioner was appointed as a Bill Collector on a temporary basis on 26'02'7994 on compassionate grounds and the petitioner's service was regularized on L7 '02'1999' The petitioner was later promoted to the post of lunior Assistant on 01'09'2005' While the petitioner was working as a lunior Assistant' on the instructions issued by Respondent No'3, the District Panchayat Officer' Mahaboobnagar District, Respondent No'4' the Divisional Panchayat Officer' Mahaboobnagar District, conducted an enqUiry and submitted a report dated 04'07'2008' stating that the petitioner had misappropriated an amount of Rs'4'70'64L1-' Thereafter' proceedings dated 19'07'2008' was issued suspending the petitioner based on the report furnished by Respondent No'4' On

29.l2.2OOB,achargememowasissuedtothepetitionerwiththe aforementioned charge. since the charge memo did not contain any witness except the enquiry report furnished by Respondent No.4, on 09.06.2009, Respondent No'4 was once again appointed as the Enquiry Officer and submitted a report without examining anyone, except recording the evidence of the complainant i'e'' the Sarpanch of the village' On 03.11.2009, ResPondent No'3, bY accepting the defective enquiry report' issued an impugned order dated 03.11.2009 removing the petitioner from service' Based on ,e 3 the enquiry report, Respondent No.3 also lodged a criminal complaint against the petitioner for the same allegations, and the police registered a case in Cr. No.242 of 2010 under Sections 409 and 420 of the IPC. After filing the charge sheet, the criminal case was numbered as C.C.No.29O of 2013, and on 31.12.2019, when it came up for hearing before the Judicial Magistrate of First Class at Jadcherla, the petitioner was acquitted. Thereafter, on 07 .03.2020, the petitioner submitted a representation to Respondent No.3, who is the disciplinary authority, for reinstatement into service with all consequential beneflts in view of the petitioner's acquittal in the said criminal case. However, no order has been passed on the said representation reinstating the petitioner into the service. Hence, the petitioner filed an appeal to the Commissioner, Panchayat Raj and Rural Development, to consider the petitioner's claim for reinstatement into service in view of the petitioner's acquittal in the criminal case, duly setting aside the removal order passed by Respondent No.3 dated

03.11.2009. However, the said appeal preferred by the petitioner had been rejected vide order dated 15.O3.2OZZ by the Commissioner, Panchayat Raj Bhavan, Himayatnagar, Hyderabad on the ground that it is barred by limitation. Aggrieved by the same, the petitioner filed the present writ petition. I I 4 ERUS D THE RECO D: The relev nt oarao ra oh Nos.17 and 18of the order eo First ed L.L2.2 19o heJ 4 A uitt n he unde r: "17). PW.4 is the investigation officer, he deposed the extent of investigation, here PW.4 has not conducted any confession panchanama of accused, nor collected any proper documents except Ex.P4 which are the receipt books, and even the receipt books does not establish whether the accused misappropriated the funds, since how much amount the accused has credited into the treasury has to be established to say whether the amount collected was credited or not. Moreover the DPO Mahabubnagar, Panchayath Secretaries during the period when funds were misappropriated were not examined, and also no explanations given by accused, order of suspension against accused, order of removal of accused, or report of PW3 and LW4 Mirza Masud Ali were not filed' Moreover PW1 & PW3 deposed in support of prosecution, but they has not stated anything in respect of funds exactly misappropriated and also why they has not enquired the panchayath Secretaries was also not known' Moreover there is more than l5 days delay in dispatching the Ex.P1, which is also not properly explained' On other hand PW2 turned hostile. Further LW4 B. Vittal Reddy I ,fn 5 investigation officer was also not examined in support of the investigation made. At present there is no proper documentary evidence to say that accused is working as a bill collector in Grampanchayath Officer Badepally, and he collected particular amount of funds from public in the way of taxes and remitted only part of amount and misappropriated the remaining amount, and the enquiry reports and nothing else is .filed except the receipt books, the said receipt books vide Ex.o4 does otestabl sh e ci um an t couitted for offence U/ Sec.420. 409of d bt. He u di used is e n s I a fndian Penal Code. (18): Point is answered accordingly. n er ult rth otf nc Co ea r mrn lPr ce bai! bonds oft hea s nd can lle aft r re od h e n 42 of ndi d e 4 e d n earlier s I T e !o in 2OO6 5 o er d B. Thetu qment of the Aoe Cou rt re o T KV 46 Gu a ula r ra r h o 1 hereunder: / / 6 e AD a e se a deo a rtmen I n ental case aoains "3O. The judgments relied on bY the learned counsel espondents are distinguishable on facts appearing for t and on law' cas e, e crim nal e tn identical and sim ilarset of facts and thecha rqe ina ellanta nd the deDa rtm he crrm lnalc urt a re onea nd the e b ch a true that the nature of charge in the SalIlIL It is proceedings and in the criminal case is departmental nature of the case launched against the grave. The the basis of evidence and material collected appellant on during.. enquiry and investigation and as against him reflected in the charge-sheet' 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 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 onlywitnessesexaminedbytheenquiryofficerwhoby relying upon their statement came to the conclusion that thechargesWereestablishedagainsttheappellant.The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusionthattheprosecutionhasnotprovedtheguilt alleged against the appellant beyond any reasonable doubtandacquittedtheappellantbyitsjudicial pronouncement with the finding that the charge has not {+t 7 been proved. It is also to be noticed that the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances. it would be unr st and unfair nd rather oooressive to allow the findi nqs record dint he deoartmental oroceed lnqs and.

31. In our opinion, such facts and evidence in the departmental as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though the finding recorded in the domestic enquiry was found to be valid by the courts below, was an honourab e aco uittal of the emol vee durrno the the same reou tres to be ta en no lAn 1999 Scc (L& ) 810r will scc 679 e therefore, hold that the appeal filed by the appellant deserves to be allowed." dismissal. 9 olv. W n the n a e s R c. Th Aoex Court, in th iudo ment dated o4.t2 .2 o23 reDorted i 2023 CC On line SC 1618 in "Ramlal Vs. State a a h a s I N r 8 d2 der: / I 8

28. Expressions like "benefit of doubt" and "honourably acquitted", used in judgments are not to be understood as magic incantations' A court of law will not be carried away by the mere use of such terminology' in the present case, the Appellate Judge has recorded that Ext. P-3, the original mark sheet carries the date of birth as 2L-4-1972 and the same has also been proved by the witnesses examined on behalf of the prosecution' The conclusionthattheacquittalinthecriminalproceeding was after full consideration of the prosecution evidence and that the prosecution miserably failed to prove the charge can only be arrived at after a reading of the judgment in its entirety. The Court in iudicial review is obliged to examine the substance of the judgment and not go by the form of expression used'

29. We are satisfied that the findings of the Appellate Judge in the criminal case clearly indicate that the charge against the appellant was not just, "not proved" - in fact the charge even stood "disproved" by the very prosecution evidence. As held by this Court' a fact is said to be "disproved" when, after considering the matters before it, the court either believes that it does not exist or c Dru dent man ouqht underthecrrcumsta nces of the n a icul s "not proved" when it is neither "proved" nor "disproved" (see Vijayee t exi st. A fact is said to be n- xis nc ron hat ro ab t s a.*r 9 Singh v. State of U.P. lVijayee Singh v. State of Ll.p., (1990) 3 SCC 190 : 1990 SCC (Cri) 3781 ). D. Learned counsel ao earinq on behalf of the oetitioner places reli ance on the iudqment da o6.12.2(J24 oassed in W.P.No.7O2O of 2023, whe under in i entical ctrcumstances. t is Court allowed the aid writ oetition filed b the oetition r thereunde r observino as under: ttal vi nded in rz and ultima "14) Coming to the case on hand, the charqe memo was issued to the oetiti ner on the qround that he was involV d in a crimi a! case, whi h was ^dmitt Aa iudqmen t dated 2t.03.2022 passed by the V Additional Sessions Judge, II-FTC, Warangal at Jangaon, in Sessions Case No.24 of 2019. Further, the witnesses cited in criminal case as well as in departmental proceedings vide charge memo dated 19.07.2018 are one and the same. Therefore, havinq reoard to the law !a id down bv the Hon'ble Apex Court in the above referred iudoment , this Court is of the view t hat th tfrtn u aa ned t'rrA r< are n a} arr under law and are ther f arna h t aside. re liabte to be 15) Accordingly, the writ petition is allowed, the impug ned order D. O. No . 1864 / 2O2I ( No. L&/BB/71 .2OtB), dated 08.03.2022 passed by respondent No.3 and the order in Rc.No.396/T2/2022, dated 30.12.2022, passed r { l0 by respondent No.2 are set aside and the respondents are directed to reinstate the petitioner into service. However, the petitioner is not entitled for backwages on the principle 'no work no pay'. Further, respondents are directed to treat the period of suspension of the petitioner from 24.04.2018 to 29.04.2020 as per Fundamental Rule 54." E. The counter affidavit has been filedon beha lf of the No.4 nd in ra h Nos.4 r extr "4. It is respectfully submitted that the Writ Petitioner during) the tenure as Junior Assistant Badepally Gram Panchayat he has collected an amount of Rs.7,35,630/- from 28-06-2007 ro 29-04-2008, our of which he has remitted an amount of Rs. 4,43,7021_into Government amount leaving a balance of Rs.2,91,928/_ Further it is submitted that the Writ petitioner herein has collected house tax to an amount of Rs. 3,37,}gL/_ out of which he has remitted an amount of Rs.2.57.628/_ leaving a balance of Rs 80,263/-. Thus the Writ Petitioner has failed to remit the balance amount of Rs. 3,48,641/- which amount to misappropriation. Therefore the Writ Petitioner herein has been placed under suspension U/R (B) of the TSCS(CC & A) Rutes 1991 vide Proceedings. No.A2/1276/2008, Dt: 19.07.2008 of the District Panchayat Officer, Mahabubnagar. - dr

5. ft is resoectfu I lv subm itted that based on the enouirv reoort of the Divisional P nchavat received vide Ref. No. Officer, Naqarkurnool Al24/ 2009 dt. 09-06-20 t holdinq all the charqes held oroved, the Writ P itioner herein as been remove from service U/ R. 9(X) of TSCS cc&A) Rules 1991 besides recoverv of m isaoorooriated amount v de Procqs No A2lt276t200A FlG. 03.11.2 llllO af +he Distric i P n at Officer M ubna ar." DISCUS SION AND CONC USION:

5. The learned counsel appearing on behalf oF the petitioner contends that, in view of the settled legal position and the facts borne on record, in the present case, the departmental proceedings initiated against the petitioner and the criminal case registered against the petitioner being based on an identical and similar set of facts and circumstances, and the charge in the departmental case against the petitioner and the charge before the criminal court against the petitioner being one and the same and in view of the fact that the Judicial Magistrate of First Class at Jadcherla had acquitted the petitioner, the petitioner herein is entitled for reinstatement into service with all consequential benefits. t "&". t2 6 The Iearned counsel appearing on behalf of Respondent No.4, placing reliance on the averments made at paragraph Nos.4 and 5 of the counter affidavit filed on behalf of Respondent No'4, submits that in the departmental enquiry conducted against the petitioner' the charges leveled against the petitioner were held to be proved. Consequently, the petitioner was removed from service on 09.O6.2O09. The petitioner preferred an appeal rejected bY the against the said order, which was Commissioner, Panchayat Raj and Rural Development' Panchayat Rai Bhavan, Himayatnagar' Hyderabad' on L5.O3.2O22 since the same had been filed beyond the three months limit from the date of order passed by the respondent No.3. Therefore, the petitioner is not entitled to any relief as prayed for in the present writ petition'

7. A bare perusal of the record indicates that the petitioner' aggrieved by the order of removal from service issued by Respondent No.3 on 03.11.2009, for misappropriation of GP funds, preferred an appeal to the Commissioner of Panchayat Raj andRuralDevelopment.ThesaidappealWasrejectedonthe grounds that it was filed beyond the three-month limit from the date the order was passed by the Respondent No'3' Specifically' d *[t l3 the appeal was rejected based on technical grounds rather than the merits of the case.

8. A bare perusal of the relevant paragraph Nos.17 & 1g of the order, dated 31.12.2O19 of the Judicial Magistrate of First Class at Jadcherla (referred to and extracted above) clearly indicates a clear observation that there is no proper documentary evidence against the petitioner and further that Exhibit P4 does not establish anything. A bare perusal of the record further indicates that on the ground that petitioner misappropriated an amount of Rs.4,10,641/- disciplinary proceedings had been initiated against the petitioner in the year 2OO8 and based on the same allegations respondent No.3 lodged a criminal case against the petitioner in Crime No.242 of 2O1O under Sections 4O9 & 42O of the fPC and the said criminal case was numbered as C.C.No.29O of 2O13 on the file of Judicial Magistrate of First Class at Jadcherla and the same ended in clear acquittal in favour of the petitioner vide orders, dated 3L.t2.2O19. A bare perusal of the observations of the Apex Court and this Court in the judgments(referred to and extracted above) clearly indicates that in a case where the departmental proceedings and the criminal case are based / >:r=$&t&:- t4 on identical and similar set of facts and the charge in a departmental case against the employee and the charge before the Criminal Court are one and the same and the Criminal Court after a regular trial and contest on due examination of the subject case comes to the conclusion that prosecution has not proved the guilt alleged against the employee beyond any reasonable doubt and acquits the charged employee by its judicial pronouncement with the finding that charge has not been proved, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand' In view ofthefactthaton3l.l2.2olg,thecriminalcasepreferred against the petitioner before the Judicial Magistrate of First ClassatJadcherlaresultedintheacquittalofthe petitioner, this Court opines that the respondents are bound to consider the representation dated O7'O3'2O2O filed by the petitioner for reinstatement of the petitioner into service with all consequentia! benefits in accordance to law within a reasonable period, duly taking into consideration the verdict of the criminal Court' dated gL.t2.zOLg passed in C.C.No'29O of 2O13 on the file of Judicial Magistrate of First Class at Jadcherla and also the i' l5 observations of the Apex Court in G.M.Tank Vs. State of Gujarat & Others reported in 2O0G (5) SCC 446 and paul Anthony Case reported in 1999(3) SCC 679 and Ramlal Vs. State of Rajasthan and Others, reported in 2O23 SCC Online SC 1618 and the judgment of this Court, dated O6.L2.2O24 passed in W.p.No.7O2O of 2o23(referred to and extracted above)

9. Ta kinq in o con iderat on: a) The aforesaid facts and circumstances of the case, b) The submissions made by the tearned counset appearing on behalf of the petitioner and the tearned Assistant Government pleader for Services_Il appearing on behalf of the respondent No.2, c) The averments made at paragraph Nos.4 and 5 in the counter affidavit filed on behatf of the respondent No.4 and (referred to and extracted above) d) The judgment dated 31.12.2019 passed in C.C.No.29O of 2013 by the Judicial First Ctass Magistrate, Jadcherla (referred to and extracted above), t 16 e) The judgments of the Various Courts (referred to and extracted above) and again enlisted bleow:- i) "G.M.Tank reported in Vs. State of Guiarat and others" 2006 (5) S,CC 446, in Particular, paragraPh No.3O and 31, ii) "Ramlal Vs. State of Rajasthan and others" reported in 2O23 SCC Online SC 1618 iii) The judgment of this Court dated 06'1'}2024 passed in W.P.No.7O2O ot 2023, The writ petition is Allowed' The respondent No'3 is directed to consider the representation of the petitioner dated 07.O3.2O2O seeking reinstatement of the petitioner intoservicedulytakingintoconsiderationthejudgment dated 31.12.2019 passed in favour of the petitioner in C.C.No.29O of 2013 on the file of the Judicial Magistrate of First Class, ladcherla and also the observations of the Apex Court in the judgments (referred to and extracted above) and duly reconsider the decision of removal dated 03.11.2OO9 of respondent No.3 i'e', the District Panchayat Officer, Mahaboobnagar District removing the petitioner 17 from service and pass appropriate orders pertaining to the request of the petitioner made vide petitioner,s representation dated 07.O3.2O2O for reinstatement of the petitioner into service, within a period of four(4) weeks from the date of receipt of a copy of this order in accordance to law, in conformity with the principtes of natural justice by providing an opportunity of persona! hearing to the petitioner and duly communicate the decision to the petitioner.. However, there shall be no order as to costs. As a sequel, the miscellaneous petitions, any, pending in the Writ petition shall also stand closed. SD/. N.CHANDRA SEKHAR RAO DEPUry REGISTRAR vSECTION OFFICER //TRUE COPY// To '1. The Principal Hyderabad, State of Telangana. .Secretary, Panchayat Raj and Rurar Development, Secretariat,

2. The District Collector, Mahaboobnagar District, Mahaboobnagar. 3. The District Panchayat Officer, Mahaboobnagar District, Mahaboobnagar. 4. The Divisional Panchayat officer, Mahaboobnagar Diskict, Mahaboobnagar. 5. The Mandal Parishad Development Officer, Jadcharla Mandal, Mahaboobnagar Diskict. 6 One.CC to SRI K.S.SUNEEL, Advocate [OPUC] 7. Two CCs to cP FOR PANCHAYAT RAJ RURAL DEV, High Court for the State of Telangana at Hyderabad [OUT] B. Two CCs to GP FOR SERVICES-II, High Court for the State of Telangana at Hyderabad [OUT]

9. Two CD Copies ry- BSR HIGH COURT DATED:0710412025 ,riE SInrt: .J 4 i,JB 2[?5 v 7- Cl *' /)l. si. :icl,4l) .-r-..-..,, * ORDER WP.No.15819 of 2020 ALLOWING THE WRIT PETITION, WITHOUT COSTS ^,1 fl\r q, g 'L>