Syed Asgar Hussain v. 1. The State of Telangana

Petition Under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue a Writ, order or direction more particularly one in the nature of writ of [Vandamus by declaring the entire action of the respondents particularly the entire action of the 1st respondent in issuing the present impugned orders in G.O.lr/s.No.53, Home(Ser.ll) Dept. dated 25.4.20'1 7, wherein imposing the penalty of withholding of 10O% pension and gratuity permanently besides recovery of the amount of Rs. 1 ,50,000/- for the issue related to 1997 despite of acquittal from the competent criminal court for the same issue by entertaining perverse findings of the enquiry officer, as highly illegal, arbitrary, unjust, improper, shockingly disproportionate than the alleged charge, colorable exercise of power and contrary to various judicial pronouncements in the subject matter if necessary set-a-side the same and consequently to direct the respondents to release pension (l-,tuity and other a ied benefits to the petitioner without reference to tl-e r)'€r:;ent impugned order in G-o.rvs.No 53, Horre(ser.[) Dept. dated 25.4.2017 r'tlr: 1'( respondent. |.A.NO:1 OF 2011lt4'PMP.NO:28817 OF 2017) Petition lJrce:r 3ection 15i cpc praying that in the circumst?nces stated in the affidavit fik:d r-, s upport of the petition, the High ccurt nay be pleased to susPEND the o1r,:,'ir ion of the impugned order in G.o.tvrs.Nro.5r' , Home(ser.[) Dept. dated 25 4.2[.)''' of the 1st respondent to enable the p€tit o rer to draw his pension and grertL iry 3tc pending disposal of the writ petition. Counsel for the Petilioner : SRI ARVIND KUMAR KATA Counsel for the Res;Jrondents : Gp FOR SERVICES- ll (HOME I The Court made the ,ollowing ORDER THE HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA WRIT PETITION No.23338 otZOL7 ORDER: The petitioner was initially appointed as a Police Constable on 09.05. 1969 and., after a series of promotions, retired as a Sub Inspector of Police on 3O-04.2O08 after rendering over 38 years of service. It is his case that while working at Mahankali Police Station, he was suspended by the 3'd respondent- Commissioner of Police on 06.05.2000 on allegations of misappropriation of Rs.1,50,000/-, which is the case-property seized in Crime No. 231 of 1997 registered against one S. Chandrasekaran (accused) for the offences punishable under Sections 42O,468, and 471 IPC. With regard to the misappropriation, a case was registered in Crime No'67/2000 against the petitioner for the offence punishable under Section 409 IPC. The Police, after investigation, fiied charge sheet before the XI Metropolitan Magistrate, Secunderabad, which was taken on file as C.C.No. 1225 of 2OOO. The trial Court, after due trial' acquitted the petitioner, uid-e Jtdgment dated 25'04'2013' However, in the parallel disciplinary proceedings, the Enquiry Officer submitted a report dated O7'03'2012 holding the charge p.o.red against the petitioner, despite non-exarnination of the 2 - main coml)1ar11 rnt Sri Praveen Danar. The acquittril -judgment of the trial rlortrI attained finality. Nevertheless, base d on the enquiry rep,r" the 1"r respondent issued G.Ct-Ms;.No.53 Home (Ser.II) D,:Ft. dated 25.O4.2017 imposing the . penalty of permanenl r.^'thholding of 1OO7o pension and Srurtuitv, and ordering r,3cc)\'erJ of Rs.1,5O,O0O/, by invoking [,.ule 9 of the Telangana S;1e11 r: Revised Pension Rules, 198()- 'I'he petitioner contends r-hat t he charges in the departmental anc criminal proceedings arr' based on an identical set of facts rlnd evidence, and hen<:e 1 1re departmental penatty post acq uittal is unsustainaLbk, in law, especially in light of jrrdg1".,1s of the Hon'ble Suprr,rrL,r Court in G.M. Tank a. Stdte of Gujarat (2006 AIR SC(W) 2'lrlcrl, and Jasbir Singh v. Punjab ancl Sind Bo,nk, ((2006) B lirq>r:me 690), where it was held that punishment cannot surlr \ (: if charges are identical and the crn ployee is acquitted in lr e :rimianl case.

2. Hearcl N,I r Aravind Kumar Kata, learned cor rn sc1 for the petitioner; a,'r:l earned Government Pleader f<rr Flom: for the respondents. J)e rused the record - 3

3. Learned counsel for the petitioner, while making submissions on the lines of writ affldavit, essentially contends that findings of the Enquiry Officer in the departmenta-l enquiry are perverse and not supported by cogent evidence; and that only four out of seven listed witnesses were examined and the testimony of crucia-l witness was omitted. It is contended that disciplinary action initiated nearly 16 years after the incident and finalized 9 years after retirement, is contrary to settled legal principles on delay in discipiinary proceedings, and violates principles of natural justice; and therefore the impugned order in G.O.Ms.No.53 dated 25-O4.2017 imposing the punishment of withholding of 1OO% pension and gratuity permanently besides recovery of misappropriated amount as illegal, arbitrary, unjust, shockingly disproportionate, and consequently direct the respondents to release his pension, gratuity, and allied benefits forthwith 4. Learned Government Pleader, based on the counter affidavit filed by respondent No. 1, essentially contends that acquittal by the criminal Court does not absolve the petitioner from punishment in Departmental proceedings' Rule 9(1) of the Telangana State Revised Pension Rules, 1980, explicitly empowers the State Government to withhold pension or gratuity .- 4 permanen tl.,' () ^ partially if, in any departnrenl a1 rr judicial proceedinrgs, t te pensioner is found guilty of gra"'e rrisconduct or negligenr:t' ,luring service. It is stated that on -'ht: allegations of misapprc pr-izrtion (failure to deposit) Rs.1 ,5(r,0OO/ n'hich is a case propert'' in relation to Crime No 23 1 ,' 1997 ' Departmen-.iLJ 1:roceedings were initiated under llule 20 of the Andhra Prack:;h Civil Services (CCA) Ruies, [99 L, and despite being asketl 1c, submit a written defence, the peti. ion'rr delayed, awaiting th t :riminal trial's outcome. The Enqr.tirv Authority, appointeC utr ler Rule 2O(2), submitted findings r:ceived on

02.ll.2O) I, trolding the charge "PROVtrD", n'.rich were furnished t'r .-Jre petitioner uide Memo dated 07 O:i.2012, arrd he responderl orL I3.06.2012. Though acquitted on 25.()4.2003 by the trial (lclr-. in C.C.No. 1225l2OOO, departmenlal 1:roceedings continuecl r-rr.r jer Rule 9(2)(a) of A'P. Revise'd l)ens;ion Rules, 1960. Oral t rrluiry records were sent to the 2 rr1 .-"0ot,6.,,- Director (l:r-,c:-al of Police, u'ho forwarded the sa me to the Governmr:nt. '[he Government issued a Shou' Callsr: notice vide Memo dated '.15.06.2016, proposing to withhold l0Ct7o pension and gratuitv permanently and recover the m isal.tpropriated amount. Aftc:r' petitioner's explanation datecl 1'|..I0.2016, the Governmcnt cassed the impugned G.O.Ms.No 53 dated -r- 5

25.04.2017 imposing the penalty, and the sarne was communicated to the petitioner on 2O.OS.2O|7, and acknowledge d on 26.05.20 I 7. The respondent asserts that the acquittal of petitioner in criminal case by the trial Court does not nullify departmental findings based on preponderance of probabilities, and disciplinary proceedings are governed by principles distinct from criminal trials, as upheld in several judgments including l. Nekon Motis as Union of fndia (AIR 1992 SC l98l), 2. Ajit Kwnar Nag as. G.M.(PJ.) Indian Oil Corporation ((2005) 7 SCC 764), 3. Management, Pandigan Roaduags Corporation Ltd. as N. Balakrishnan ((2OO7) 9 SCC 755), 4. Noida Entrepreneurs Associati on as. Noida and Others (2OO7 (l0l SCC 385) and 5. Roop Singh Negi vs Punjab National Bank ((2009) 2 SCC 570), reiterating that departmental and criminal proceedings operate in different domains and do not amount to double jeopardy; ald therefore there is no illegality in the impugned order.

5. Having considered the respective submissions and perused the record, it may be noted that the petitioner was acquitted by the trial Court in C.C.No.1225 of 2000 on 25.04.2003 on the same set of charges AS pursued in the departmental .- 6 proceedings. l{ trl-ever, the impugned punishment u rr; imposed on the pol it.()ner on 25.O4.2017 in tLLe departmental proceedings l. is settled law that departmental procteCings ald criminal pr-or::edings have different focus, l16rt'rr''er, the departmen t 1t ac no impediment in pursuing -.he dcp artmental proceeding;s '.r hile the criminal trial was being parallelly conducted b1 t-e trial Court. The material on record shows that the case \\'as r -'gistered against the petitioner -n tlle l ear 2OOO, and he r.l,a s :rr:rlurtted by the trial Court in 2003, :Lnrl he retired from servjct' irr the year 2008. It is not in dispure that the petitioner ha<1 undergone tria-1 and also faced dep,artmental proceeding;s crI arl identical set of allegati'rns. Though departmer LrLl p-oceedings and criminal proceedin gs ,)perate in different lr,rr-Lrr ns and have different focus, t is beyond comprehellsion as to the reason for such an inordinat e delay of over 16 )'( .u'r; in finalising the departmental pr >ceedings. Further, '-he :etitioner retired in the year 2C 08, alld the impugned lrc or was passed in 2Ol7 . Furtl'rerr lore, the impugned (i.O \4s.No.53 would show that the 2"r respondent- DGP has v,r:1ten (vide Letter dated 06.02.i101:l) to the 1"t respondent tr; r:onclude the departmental procecdin1,;s against the petitio,-rr r irr view of the retirement of the pe'titioncr, and also 1 mentioning that the petitioner has been acquitted in criminal case in the year 2003. 6 At this juncture, it is relevant to refer to the Judgment of the Honble Division Bench of this Court in W.A.Nos'1660 of 2018 and 593 of 2016, dated 13-12.2021 wherein this Court allowed the writ appeals filed by the Road Transport Corporation on the ground that the employee (respondent in the appeal) approached the Court with a delay of 17 years from the date of impugned order of punishment therein. The Hon'ble Division, by referring to Kulwant Singh Gill vs' State of Punjab (1991 Supp(f f SCC 5041, observed as foilows: "The delag of 5 to 78 gears was held' to be inordinate delag in preferring a urit petition under Article 226 of the Constitrttion of India"' In the instalt case, there is a delay of 16 years from the 7. date of inception of departmental proceedings, and a delay of 9 years from retirement, until culmination in the impugned order' Inthatviewofthematter,inviewoftheinordinatedelayof9 years from the date of retirement, and in the light of the law laid down by the Hon'ble Supreme Court in Kulwant Singh Gill (supra), and also the Hon'ble Division Bench of this Court in -- 8 W.A.No.166,0 rl 12018 and W.A.No'593 of 2016, the uriI petition deserves to be rt I orn ed.

8. AccorCir,illr'. the impugned G.O.Ms.No.53, Horrre' Services- II) Departnrert, dated 25.O4.2OI7, is set aside, ;rnd the u'rit petition is 2[16rr'- --d No costs. Misce llirrre ous petitions pending, if any, shall s;tan I closed. That Rule Nisi lTas been absolute as above. Witness the Hon ble the Acting Chief Justice SUJOY PAUL, on tttis Tuesday, the Firs;t rJry of April, Two Thousand and Twenty five' //TRUE COPY// IJD/.,i\.V.S.PRASAD DEPPN REGISTRAR :}ECTION OFFICER To Telanoar'a a' l{ roerabad-SOO 022.

1. The Princip al :i,rcretary, Home Department, Secretariat, Buildi lgs' State of z. rne oi[ ri,, ,]eineral of police, state of Telangana, L,akidikapool Hyderabad 5. The Corrn iss;irner of Police, Basheerbagh, Hyderabad' +. f*" C-Cs t,r G r FOR SERVICES -ll (HOIVIE), High Ccurt for tlre State of 5. one ic to s,n ARvtt to KUtvlAR KATA, Advocate [ocuC] 6. Two CD Coltie s Telangarra at tlyderabad. [OUT] SA GJP .5I,.ri \+ a .', ,/')' ^\ ) ,l a $; ; $' l- HIGH COL'FTI- DATED:01 104,'2025 ORDER WP.No.233:38 of 2017 ALLOWINGi -THE W.P WITHOUT COSTS. ig 6la^'