Full Judgment
THE HON'BLE Sr.JUSTICE L.NARASIMHA REDDY AND THE HON'BLE Sr.A.RAJASHEKER REDDY WRIT PETITION No.30482 of 2010 dated:09-10-2013 Government of A.P.and others...PETITIONERS K.Naveen Kumar and another...RESPONDENTS COUNSEL FOR THE PETITIONER :G.P.for Services-1 ^COUNSEL FOR THE REPSPONDENTS:Sr.M.Surender Rao : ?.CASES REFERRED: 1.(2007) 4 scc 669 2.
(2010) 1 scc (L&S)129 ORDER
: (per the Hon'ble Sr.Justice L.Narasimha Reddy) This writ petition is filed by the respondents in O.A.No.2706 of 2008 on the file of the A.P.Administrative Tribunal against the order, dated 22.10.2010 passed therein.
The 1st respondent (for short 'the respondent') filed the O.A.challenging the order, dated 16.10.2006, passed by the 3rd petitioner herein removing him from service.
The Tribunal allowed the O.A.and has set aside the order impugned therein.
The respondent was appointed as Sub-Inspector on 02.05.2005 through direct recruitment and he was under probation.
He was posted at Pembi Police Station, Adilabad District.
A charge memo was issued to him on 22.11.2005 alleging that on 09.10.2005, he entered the Police Guest House at Karimnagar along with a lady falsely introducing him as a Probationary Sub-Inspector and forcibly entering into Room No.6, bolting the room from inside, and indulging in obscene activities.
The details of the charge were mentioned in the charge memo.
The respondent submitted his explanation denying the charge.
Not satisfied with the explanation, the 3rd petitioner appointed an Enquiry Officer.
A report was submitted by the Enquiry Officer on 16.07.2006 holding that the charge against the respondent is proved.
Taking the same into account, the 3rd petitioner passed an order, dated 16.10.2006, directing removal of the respondent from service.
The respondent pleaded that the charge framed against him is totally false and that the Enquiry Officer has recorded a finding that the charge is proved though neither the complainant nor the so-called woman have supported the charge.
The O.A.was opposed by the petitioners by filing a detailed counter.
The Tribunal allowed the O.A.taking the view that the finding recorded by the Enquiry Officer is perveRs.and without any basis.
The order passed by the Tribunal is challenged in this writ petition.
Learned Government Pleader for Services-I for the petitioners submits that the Tribunal examined the report of the Enquiry Officer as though it is an Appellate Authority and differed with the findings recorded therein.
He contends that the scope of interference with the disciplinary proceedings by the Tribunal is very limited and unless a finding is recorded to the effect that the Enquiry Officer or the disciplinary authority exceeded the jurisdiction, the order passed against an employee cannot be interfered with.
He has also taken us to the report of the Enquiry Officer and the other proceedings.
Sr.M.Surender Rao, learned counsel for the respondent, on the other hand, submits that the sole charge framed against his client was false and it is evident from the fact that the so-called woman whom the respondent is said to have taken into the Guest House, as well as the Head Constable, who is said to have given the complaint, did not support the case of the Department at all.
He contends that out of sheer professional jealousy, the respondent was implicated when he was on probation.
The sole charge framed against the respondent reads as under: On 09.10.2005, at 1940 hours the delinquent officer came with a lady to the Police Guest House, Karimnagar and he introduced himself as S.I.of Police, Pembi Police Station, Adilabad District and he also introduced the lady as his batchmate and asked the in-charge Head Constable Pochaiah to allot a room to them.
In turn, the in-charge Head Constable requested the delinquent officer to take prior permission of the R.I.(Admn.) Karimnagar.
But, the delinquent officer without permission of the R.I.forcibly went into room No.6 along with the lady and bolted the door from inside.
The in-charge Head Constable observed the S.I.and lady through the window of the room and found them indulging in obscene sexual acts.
The in-charge Head Constable immediately informed the same to R.I.(Admn.) Karimnagar, who in turn visited the Police Guest House, witnessed the obscene acts of the delinquent officer and he also informed the same to SI Karimnagar-I Town.
Later, R.I.(Admn) Karimnagar and S.I.of Police, Karimnagar-I Town P.S.knocked the door.
The delinquent officer opened the door and revealed his identity as PSI of Pembi P.S.of Adilabad District and the lady also as probationary S.I.During the enquiry by the SI Karimnagar I Town Police Station, it was revealed that the lady is not a Probationary S.I.or the wife of the delinquent but actually Koruveta Manasa @ Ramya D/o.Vishwanatham, 19 years of age, Pardhan native of Kerameri now at Mahcerial, who is unmarried.
Thus, Sr.K.Naveen Kumar, PSI of Pembi Police Station, Adilabad District exhibited gross misconduct by bringing a lady with him, introducing himself and the lady as Probationary S.Is., occupying a room in the Police Guest House, Karimnagar on 09.10.2005 without permission of the R.I.Karimnagar, forcibly going into room No.6 along with the lady bolting the door from inside and indulging in obscene sexual acts.
Being a Police Officer, he brought down the image of the Police and thereby violated Rule 3 of APCS (Conduct) Rules, 1964.".
The sequence of events that gave rise to the initiation of disciplinary proceedings against the respondent is that a Head Constable (AR).by name Sr.K.Pochaiah (P.W.3).was functioning as In-charge of the Police Guest House at Karimnagar and the respondent came to the Guest House together with a woman and asked for accommodation.
P.W.3 is said to have asked the respondent to obtain permission of the Inspector of Police (AR) (P.W.6).Thereupon, the respondent is said to have rushed into the room without obtaining permission and bolted the room from inside.
The version of the Department was that P.W.3 informed the incident to P.W.6 on telephone and P.W.6, in turn, has passed the information to the Circle Inspector of Police, P.W.5, and on his instructions, P.W.6 has gone to the Guest House.
P.W.3 is said to have peeped into the room through mosquito mat and found the respondent and the woman inside the room.
On shouting by himself, P.W.4 and otheRs.the respondent is said to have opened the door and went away.
This, in brief, constituted the gist of the charge.
If what is alleged against the respondent is true, it can certainly constitute the basis for disciplinary action.
Before the Enquiry Officer, not only the woman, who is said to have accompanied the respondent, but also the three Police officials mentioned above, and a Home Guard, P.W.2, were examined.
The Enquiry Officer has virtually reproduced the depositions of the respective witnesses.
P.W.1, by name K.Manasa @ Ramya, stated that the respondent is the friend of her brother and they met at Warangal.
She denied the allegation that she accompanied the respondent to the Police Guest House.
Nothing was elicited from this witness in the cross-examination.
P.W.2, the Home Guard, who was on duty, stated in the cross-examination that he has not seen any obscene activity between the respondent and any woman and that he is unaware of the statement recorded from him.
The important person from whom the information is said to have percolated to various officers is P.W.3, Head Constable.
In his cross-examination, he stated that he has not seen any obscene activity through the window and he is unaware of the statement recorded from him by the Enquiry Officer.
The Sub-Inspector of Police, who came to the Guest House on being instructed by his superior, P.W.5, stated that he was standing in the varandah and he did not see the respondent in the room.
Suggestions were also made to him as to whether anybody was sent to medical examination.
P.W.5 stated that he received information from the Circle Inspector of Armed Reserve and he conducted preliminary enquiry into the episode and submitted a report on 09.10.2005.
He stated that no case was registered against the respondent, since he is on probation.
He was not clear as to whether he has seen any woman along with the respondent at the scene.
We are conscious of the fact that neither the Tribunal nor the High Court can act as an appellate authority vis--vis the finding recorded by the Enquiry Officer.
It is, however, equally settled that if the finding of an Enquiry Officer is not based on any evidence, the same cannot constitute the basis to impose the punishment on an employee.
The Tribunal has also recognised its limitations as well as the principles that govern the matters of this nature.
Reference was also made to the relevant precedents, such as judgments of the Hon'ble Supreme Court in Coimbatore District Central Cooperative Bank versus Coimbatore District Central Cooperative Bank Employees Association1 and Union of India versus Gyan Chand Chattar2.
The Tribunal found that the finding recorded by the Enquiry Officer is based on no evidence.
Thorough analysis was undertaken and valid reasons were given in support of the conclusions arrived at by the Tribunal.
The learned Government Pleader for Services-I is not able to point out that the conclusions arrived at by the Tribunal are perveRs.or that they are contrary to any principles laid down by the Hon'ble Supreme Court.
This Court, in exercise of powers under Articles 226 and 227 of the Constitution of India, can interfere with the order passed by a Tribunal, only when it is established that such an order is either without jurisdiction or is perveRs.on the face of it.
We do not find any such grounds in the present writ petition.
The career of a person, who is selected to a post in a tough competition, cannot be subjected to the whims and fancies of some officials or the finding based on surmises in the departmental enquiry.
We, therefore, dismiss the writ petition.
We, however, direct that the respondent shall not be entitled to be paid the back wages, provided he is reinstated within a period of one month from today, but, he shall have the benefit of continuity of service and other relevant benefits.
There shall be no order as to costs.
The miscellaneous petition filed in this writ petition shall also stand disposed of.
_____________________ L.NARASIMHA REDDY,J ________________________ A.RAJASHEKER REDDY,J Dt:09.10.2013